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Full text of "Points in canon law (claimed to be) opposed to some of Rev. Dr. Smith's views of ecclesiastical law, as now applied to the United States of America : a reproduction of a series of articles contributed to The Catholic Universe, Newspaper, of Cleveland Ohio"

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A 





tl m iitl0 



(claimed to be) 



OPPOSED 




TO SOME OF 



Rev. Dr. SMITH'S VIEWS 



OF 



ECCLESIASTICAL LAW, 



AS NOW APPLIED TO THE 



UNITED STATES OF AMERICA. 



L reproduction of a series of articles contributed to The Catholic Universe, 

Newspaper, of Cleveland, Ohio, 



BY 



Rev. P. F. QUIGLEY, D. D., 

Professor of Canon Law, ete. , in St. Mary's Seminary, Cleveland, Ohio. 



Copyrighted, 1878, by P. F. Quigley. 



Ca:_jjc u:.A 



CLEVELAND, OHIO: 

M. E. McCABE, 
CATHOLIC UNIVERSE PRINTING HOUSE, 117 ERIE STREET. 

1878, 



'F Aiv:..niCA UQLlkM 
Washington, D. C. 



NIHIL OBSTAT. 



T. F. MAHAR, D. D., 



Censor Deputates, 



APPROBATION 

OF THE RT. REV. BISHOP OF CLEVELAND.. 

IMPRIMATUR. 

t R. GILMOUR; 

Episcopus Clevelandends. 

Datum Olevelandensis, 

Festo SS. Petri et Pauli, 1878. 






RESPECTFULLY DEDICATED 

TO 

MY REVEREND COLLEAGUES 

IN THE 

UNITED STATES OF AMERICA. 



The subject of Ecclesiastical Law in the United States is one of momentous 
importance to the Catholic clergy of this country, and from day to day necessa- 
rily will increase in interest for all of us. To mention no higher interest, it 
is likely to be for many of us, from time to time, a case where ignoratio legis 
non exciisat. 

The Reverend Dr. Smith of Rahway, in the Diocese of Newark, has rend- 
ered us all a service by calling attention to the subject in his recently pub- 
lished Elements of Ecclesiastical Law. While we must all feel grateful for those 
of his labors which set before us correct expositions of the law, it is of the 
greatest importance for us to be sure that all of his expositions are strictly 
correct. An eminent friend thought there w r ere errors in the Elements, and 
earnestly asked me to examine and criticise them. In looking through them 
I found several propositions advanced which I considered at variance with 
established authority. I have undertaken, in my feeble way, to call attention 
to some of those statements, and to give my reasons for dissenting from them. 

Mv observations were originally contributed in a series of articles to The 
Catholic Universe ; and now, at the request of several eminent friends, they 
are republished in pamphlet form, so as to bring them more conveniently 
to your notice. I hope you may deem them worthy of your consideration, 
and if any of my criticisms can be shown to be unfounded, I hope some 
of you will kindly take the trouble to further enlighten us all. 

This is in no sense a subject of controversy in the ordinary acceptation of 
the word ; it is a matter for serious effort, not to sustain a theory, but to 
ascertain the law. It is in that spirit these remarks are submitted, and I 
will feel amply repaid for the labor bestowed in presenting them if they con- 
duce to that end, either by being accepted as correct, or by inducing some 
able Canonist to favor us with his superior efforts, or finally by becoming 
matter of an authoritative decision. 



If in any of these essays there appear at times remarks which seem to be 
controversial rather than philosophical, I regret it, and (without pleading 
what at the time of writing seemed to me justification for a newspaper article), 
I ask that they may now be lost sight of, in the graver consideration of the 
main questions involved. 

I also have the honor of inviting attention to the Decree de Matrimoniis 
Clandestinis, which was sent by the Holy See to New Orleans more than fifty 
years ago, but thus far has never been given, in full, to the public in any 
book or pamphlet. 

I avail myself of this opportunity to tender my thanks to Rt. Rev. Dr. 
Gilmour, our illustrious Bishop, for deigning to approve my articles ; and to 
the Most Rev'd and the Rt. Rev'd Prelates who graciously favored me with 
their valuable letters, herewith given to the public ; to my Reverend friend 
Dr. Mahar, for his kindness in performing the duties of censor deputatus ; as 
also to my esteemed friend Dom Pedro Manly Tello, the distinguished 
editor of our most excellent journal, The Catholic Universe, for many 
acts of kindness in publishing these articles. 

Most respectfully, 

THE AUTHOR. 



Month of the Sacred Heart, 1878, 
St. Mary's Seminary, Cleveland, O. 



} 



Approbation of Rt. Rev. Richard Gilmour, D. D., 

Bishop of Cleveland. 

Episcopal Eesidence, Cleveland, June 24, 1878. 
REV. P. F. QUIGLEY, D. D. 

REV. DEAR SIR: 

I regard your criticisms on Rev. Dr. Smith's Elements of Ecclesiastical Law as 
a valuable acquisition to our ecclesiastical literature. They will excite thought 
and sharpen lines which in the long run will end in something definite. 

There may be a difference of opinion as to the exact character of the appro- 
bation given by the Holy See to the late Council of Baltimore, but there can be 
no difference of opinion as to the necessity of clearly understanding the binding- 
force of those Decrees. 

Your little work will greatly help to this end, and so I most willingly give it 
the necessary imprimatur. 

Yours sincerely in Xto., 

t R. GILMOUR, 

Bishop of Cleveland. 



Commendation from Most Rev. J. B. Purcell, D. D., 

Archbishop of Cincinnati. 

Cincinnati, July 20, 1878. 
REVEREND DEAR DOCTOR: 

You have the inner track of Rev. Dr. Smith. I know his book only by your 
most just and learned strictures. 

Yours Sincerely, 

t J. B. PURCELL, 
rev. DR. QUIGLEY. Archbishop of Cincinnati. 



Commendation from Most Rev. Napoleon J. Perche, 
D. D., Archbishop of New Orleans. 

St. Charles College, Grand Coteau, La., July 27, 1878. 
REV. DEAR SIR: 

His Grace the Archbishop of New Orleans, is now actually visiting his vast 
Diocese, giving Confirmation, and is so much oppressed and fatigued that he is 
unable to write you personally. But I am directed by his Grace to inform you 
that he will be very much pleased to see your articles against Dr. Smith's Elements 
of Ecclesiastical Law published in pamphlet form. 

With sentiments of most sincere affection in Christ, 

Your very devoted, 

E. M. TRAIN, 
rev. dr. quigley, Cleveland, o. Private Secretary. 

Commendation from Rt. Rev. Eugene 0' Connell, 
D. D., Bishop of Grass VaMey. 

Weaverville, Trinity County, Cal., June 27, 1878. 
MY DEAR DOCTOR QUIGLEY: 

Your strictures on Dr. Smith's Elements of Ecclesiastical Law which appeared 
in the Catholic Universe, struck me so forcibly, your arguments seemed to me 
so convincing, that I long to see them in pamphlet form. How any canonist can 
gainsay them "I'm weary of conjecture." Fearing lest your strictures might not 
appear in pamphlet form I took the precaution to clip them from the columns of 



6 

the Universe. But I am not so selfish as to wish your arguments hidden under a 
bushel. On the contrary, I would fain they were published for the benefit of all 
the clergy in the United States. May I then request of you, dear Doctor Quigley, 
to have them published in pamphlet form? Scire tuum nihil est, says Persius, nvti 
te scire hoc sciat alter. And in a certain sense the poet is quite right. 

Let me assure you that until the appearance of your strictures on Dr. Smith's 
Elements, certain theologians were not aware of the obligation in California ( Alta) 
of receiving the Paschal Gommunion in one's own Parish! You have clearly 
demonstrated that this obligation is not limited to some (qusedam Parsecise) Par- 
ishes, but extends to all throughout California; and that not merely the State, but 
the Ecclesiastical Province of California — including Nevada — comes under the 
obligation. The Decrees of our First Provincial Council, approved by the Holy 
See and quoted by you, clearly prove the obligation of the faithful to receive 
Paschal Communion in their respective Parishes. 

How many, too, would long to see the Decree De Matrimoniis Clandestinis, Feria 
V. 9° Septembris, 1824, which you have done me the favor of sending me. This 
important Decree or Instruction to the Bishop of the Diocese of New Orleans, has 
not, I understand, appeared in any book or pamphlet ! Will you not also include 
it in the pamphlet containing your strictures and thus oblige not only me, but 
many more of your clerical friends. 

Wishing you length of days here and eternal happiness hereafter, I remain, 
dear Doctor Quigley, 

Your obliged servant in Christ, 

t E. O'CONNELL, 

REV. P. F. QUIGLEY, D. D., Cleveland, O. Vallisprat. 



Commendation from Rt. Rev. S. V. Ryan, D. D., C. M., 

Bishop of Buffalo. 

Buffalo, July 31, 1878. 
DEAR DR. QUIGLEY: 

In regard to your pamphlet, the advance sheets of which you have been 
kind enough to send me, I can only say that I am pleased to see the articles, 
which *I read with interest in the Catholic Universe, now put before the public in 
a more permanent form, and your own worthy Bishop approving your little work 
as "a valuable acquisition to our eeclesiastical literature." 

I recommend you not to delay its publication. 

Very Respectfully Yours, etc., 

t S. V. RYAN, 

Bishop of Buffalo. 



Commendation from Rt. Rev. Alexius Edelbrock, 
0. S. B.j Abbot, St. Louis on the Lake. 

Abbey of St. Louis on the Lake, St. Joseph P. O., \ 
Stearns County, Minn., July 21, 1878. J 

REV. DEAR DOCTOR: 

Accept my sincere thanks for your valuable treatise, Points in Canon Law. 
This important little work is very opportune. It bears no marks of superficial 
reading, or of an indigestible quantum ; but it is clear, logical, and erudite. You 
do not merely say, but prove as you go along. 

I am, in the Sacred Hearts of Jesus and Mary, 

Yours Very Respectfully, 

ALEXIUS EDELBROCK, 0. S. B., 
REV. P, F. QUIGLEY, D. D.. Cleveland, O. Abbot. 



Commendation from Rt. Rev. Francis X. Leray, D. D. 

Bishop of Natchitoches. 

, Natchitoches. July 29, 1878. 

EEV. DEAR FATHER: 

The reading of your pamphlet has afforded me great satisfaction. I rejoice 
to see questions of ecclesiastical law, as now applied to the church in the United 
States of America, brought before the public and discussed by competent men, 
in the hope that such efforts will hasten the day when Canon Law will be the 
rule in this country, for the greater security of priests and for the additional 
strength it would give to Episcopal authority based upon well known and well 
denned laws. 

Yours Faithfully in Xto. 

FRANCIS X. LERAY, 
rev. P. F. quigley, D. D. Bishop of Natchitoches. 

Commendation from Rt. Rev. Joseph Dwenger, D. D., 

> Bishop of Fort Wayne. 

Fort Wayne, Indiana, July 20, 1878. 
REV. DEAR FRIEND: 

I think that your little work, Points in Canon Law, is very opportune, and 
that it will serve a very useful purpose. 

Very Sincerely, 

T JOSEPH DWENGER, 
rev. dr. quigley, Cleveland. ' Bishop of Fort Wayne. 

Commendation from Rt. Rev. A. M. A. Blanchet, D. D. 

Bishop of Nesqually. 

Vancouver, W. T., August 5, 1878. 
REV. P. F. QUIGLEY, D. D. 

Rev. Sir: 
I have received the advance sheets of your pamphlet on Ecclesiastical Law 
in the United States, for the publication of which you wish to have my opinion. 

In answer I would say that all that contributes to ascertain the true and 
correct exposition of Ecclesiastical Law in this country ought to be appreciated 
and welcome. Therefore I heartily approve of your proposed publication. 
*#***#**#-$#& * * *- » 

Yours Truly, 

t AUGUSTINE M. A. 
Bishop of Nesqually. 

Commendation of Very Rev. James A. Corcoran, D.D. 
the American Theologian of the Vatican Council. 

St. Charles Seminary, Overbrook, Pa., Aug. 7, 1878. 
REV. DEAR DOCTOR: 

I have read your pamphlet, though not yet with sufficient care and study 
to pronounce fully on its merits. 

Controversy of this kind, when properly carried on without personalties or 
rancour, is very useful j,n eliciting the truth, and I think every writer, whose 
only purpose is to discover or illustrate the truth, should be glad to have his 
book weighed in the trutina of criticism that is candid, impartial and aiming at 
truth as its only object. 

Amongst other things, I was very much pleased with what you say of the 
Confirmation of the Second Plenary Council of Baltimore, and of the law of the 
Index as to its binding character in this country. Believe me, 

Yours Truly in Xto., 

JAS. A. CORCORAN. 



8 

Commendation from Honorable Edmund F. Dunne, 
Ex Chief Justice of Arizona . 

Law Office Edmund F. Dunne, Wasatch Building, \ 
Salt Lake City, Utah, U. S. A., Aug. 5, 1878. / 
MY DEAR COUSIN: 

Points in Canon Law received, and read with interest. I supposed it would 
treat of matters none but a canonist could understand, but I find it to be, among 
other things, a very interesting "brief" on the construction of statutes, enjoyable, 
I think, as much by a civil lawyer, or any one who can follow an argument, as 
by a canonist. Unless the author of the Elements can successfully impeach your 
authorities I would expect judgment against him in the points raised. Given the 
law as cited, and the authorities quoted, your conclusions seem inevitable. 

Ever Yours, 

EDMUND F. DUNNE. 
REV. P. F. QUIGLEY, D. D., Cleveland, Ohio. 



Commendation of Rt. Rev. Francis Mora, D. D., 
Bishop of Montery and Los Angeles. 

Los Angeles, California, Sept. 9, 1878. 
REVEREND AND DEAR SIR: 

I have received the Points in Canon Law which you had the kindness to send 
me. I have read them carefully, and recommend them to the perusal of the 
clergy of my Diocese. 

Yours in Christ, 

t FRANCIS MORA, 
REV. P. F. QUIGLEY, D. D. Bishop of Montery and Los Angeles. 



Commendation from the Jesuit Fathers of Wood- 
stock College. 

College of the Sacred Heart of Jesus, ) 
Woodstock, Howard Co., Md., Oct. 11, 1878. J 
REV. DEAR FATHER QUIGLEY: 

I have read the advance sheets of Points in Canon Law. I highly approve 
of what you have written. The doctrine is sound and true. I am very much 
pleased to learn that it will be published in pamphlet form for the benefit of the 
clergy of the United States. 

Yours Respectfully in Xto., 

FR. CHARLES PICCIVILLO, S. J., 

Prefect of Studies at Woodstock College. 



f> 



THE CONFIRMATION 

OF THE 

SECOND PLENARY OOUXOJL OF BALTIMORE. 



FIRST ARTICLE. 

Editor Unhorse: 

I respectfully ask the use of the columns of The Catholic Universe to 
criticise some faulty points in the Element* of Ecclesiastical Law, a work 
recently from the pen of Rev. Dr. Smith. 

I believe the prevailing opinion in the United States is that we are fast ap- 
proaching that ecclesiastical status, in which the study of Canon Law is of the 
utmost importance. I think, therefore, that every act which tends to prepare 
minds in this country for such a change is deserving of praise and encourage- 
ment. At the same time the consequences of false teaching in this depart- 
ment are so disastrous that one need offer no apology for attempting to correct 
it. 

Rev. Dr. Smith has obtained from Cardinal McCloskey, in whose Diocese 
the Elements were published, the imprimatur. This I duly reverence. Yet 
it does not deter me from criticising the work, for I feel sure His Eminence 
never intended his imprimatur to preclude just, fair, and kind criticism. 
Plato mihi amicus, magis aide m am tea Veritas. 

I. Rev. Dr. Smith, in his Element* of Ecclesiastical Law, pages 74 et seq., 

so interprets Canonists as to teach that the Roman documents confirming the 

Second Plenary Council of BO f 'more contain only the confirvvdio in forma 

communi, seu ordinaria, and therefore the Baltimore Decrees, he concludes, are 

not confirmed confirmations in form r t specified., seu ex certa scientia data. As a 

consequence of this, he teaches, page 74, that: 

" It is allowed to appeal to the Propaganda from the Decrees of the Second 
Plenary Council of Baltimore." 

This is a question of the highest importance to all, as it decides whether or 

not the Baltimore Decrees are, for this country, a common standard of action 

according to which Bishops may rule with certitude as to whether Rome will 

sustain their rulings. If Dr. Smith's teaching be correct, it is certain that 

priests have a right to appeal to Rome against all decisions of Bishops founded 

upon the Baltimore Decrees; the Decrees are no permanent standard of action 

for our Bishops, and may not be accepted at Rome as reason against 

reversing the rulings of Bishops. If Dr. Smith's teaching be incorrect, the 

decisions of Bishops, when ruling according to the Baltimore Decrees, will be 

sustained by Rome; the hope of obtaining a reversal of judgment is futile and 



10 

absurd ; and priests appealing against such rulings of Bishops are deceived as 
to their rights, and the rights of Bishops, and may expect only a disastrous 
condemnation. 

These two teachings are essentially opposed to each other; they are incom- 
patible ; they demand different forms of government, for the enforcement of the 
one necessarily destroys the existence of the other. The latter is the one we 
must hold. 

The Roman documents confirming the Baltimore Decrees, when interpreted 
in the light of the correct teaching of Canon Law, evidently contain the 
confirmatio in forma specified, sen ex certa scientist data, and show that Dr. Smith's 
teaching on this question is false and untenable. 

I will give the law, produce the Roman documents and make the applica- 
tion. 

What does the law say? 

Suarez says, conformation is ex certa scientia when it is made: "With a complete 
"knowledge of the matter (of the Council) and of all its circumstances." (1). 

"When the confirmation itself contains such words as show sufficiently that 
" it was preceded by an examination, or by full knowledge of the matter 
" confirmed." (2). 

The same author further says the signs by which we may know that the 
confirmation was made with full knowledge of the matter confirmed are: 

"If in the instrument of confirmation the whole tenor or text (of the Coun- 
"cil) be inserted:" (3). 

"If the phrase ex certa scientia be expressly used:" (4). 

"If a clause equivalent to ex certa scientia be used. It is not necessary, for 
" the confirmation to be specific, that the formal words ex certa scientia 
" be found in the rescript; but it suffices that from other words of the rescript, 
"or from things therein recounted, it appear that the Pope acted with full 
"knowledge (of the Council confirmed)." (5) 

Suarez teaches that the confirmation is made in forma communi: 

1. " When it contains nothing; sufficient to show that the confirmation was 
" made with full knowledge (of the matter confirmed) :" (6) 

2. " When it is a pure and simple confirmation made without knowledge 
" (of the decrees), with only a confused or indistinct knowledge, or without 
" any examination:" (7) 

(1). Cum notitia perfeeta rei et omnium circumstantiarum illius. — Suarez, Vives, Paris Edition, 
1850, vol. 6, p. 294. 

(2). Qimndo in ipsa confirmatione adduntur verba aliqua quibus sufficienter signiflcatur pme.eessisse 
examen seu cognitionem perfectam. — Suarkz. 1. c. 

(3). Si in instru'meuto confirmationis inseratur totus tenor (concilii) : — Suarez. 1. c. pp. 294 and 295. 

(4). Si expresse dicatur ex certa scientia. — Suarez. ]. c. p. 295. 

(5). Clausa sequipollens illi, ex certa scientia. Non sunt necessaria in rescripto formalia verba ex 

certa scientia ut [confirmatio] censentur esse ex certa scientia ; . . . . sed sufficere quod ex 

aliis verbis ejusdem rescripti. sen ex narratis in illo constet principem rPapam] cum plena facti cogni- 
tione processisse. — Suarez. 1. c. 

(G). Quando in ea nullum signum sufficiens additur ex quo constat confirmationem processisse habita 
plena notitia (concilii). — Suarez. 1. c. 

(7). Quando est pui"a et simplex confirmatio sine cognitione (decretorum) facta . . . cum 
sola cognitione confusa, sine ullo examine, vel distinctiori notitia (concilii): — Suarez. 1. c. 



11 

3. " When the tenor or text (of the Council) is not inserted (in the confir- 
" raation):" (8) 

4. " When it lacks every quality sufficient to show that the confirmation 
" was made ex eeiia xcientia." (9) 

The eminent canonist Reiffenstuel says: 

" Confirmation in forma communi, which is also called simple or ordinary 
" confirmation, is that by which the superior approves of the act of his infe- % 
" riors, leaving said act in the same state (as to truth, justice and wisdom) as 
"it was before being confirmed." ('10; 

"Confirmation is made in forma speciali sen ex eeda seient'ta when the tenor 
"or text of the whole (Council or) instrument is inserted in the confimation; 
" when the clause ex certa seientia is used : When words equivalent to ex certa 
" xcientia are used." (11). 

Schmalzgrueber, whom Ballerini has called facile princeps canonistarum, 

says : 

"Confirmation is made in for mi communi when the prince, or other superior 
"having power to confirm, without any knowledge, or without an exact 
"knowledge of the cause, and therefore not fully, or only confusedly in- 
structed as to the cause, confirms an act done by an inferior for what it is 
"worth." (12). 

" But the confirmation is special, or ex certa seientia when he confirms the 
" act of an inferior, after having considered and examined all the circum- 
" stances and qualities of the cause, and hence has full and perfect know- 
ledge of it." (13). 

" The signs by which we may know that a confirmation was given in forma 
" specifiea, are: 

" If in the instrument or rescript of confirmation there be inserted the 
" whole tenor or text of the act which is confirmed, because then it is evi- 
"dent that the superior had fall and certain knowledge of the cause and 
" wished to confirm the act and make it of force." (14). 

(S). Quando tenor (ooneilii) non inseritur (in eonfirmatione) : — Si'arf.z. 1. c. 

(9). Quando caruerit orani proprietate sufticionte ad hoc ut confirmatio sit ex certa .seientia :— 

Scarez. I.e. 

(10). Confirmatio in forma communi (qua? et confirmatio simplex, atqute ordinaria appellator) ea 
est qua superior non prsecedente alia cognation? causie, actum a)) inferioribus gestum contirmat in eo 
statu, in quo prius erat. — Reiffenstuel, .7 us Canonicum, Vives, Paris Edition, 1 8GT>, vol. 3. Bk. 2, last 
Tit. p. 359. 

(11). Contirmatio facta est in forma speciali, et non tan turn communi, si tenor totius priviligii, aut 

instrumenti inseritur ipsi confirmation!; vel saltern apponitur clausula " ex certa seientia," aut si 

contirmatio fiat per verba tequipollentia.— Reiffenstuel. 1. c. p. 360. 

(12). Contirmatio in forma communi tit quando princeps, vel alius superior potestatem confirmandi 

hahens, nulla, vel non exacta, causse cognitione pnemissa, adeoque de'negotio non -plene, sed confuse 

tantum instructus, actum ab inferiore gestum contirmat in eo statu in quo antea fuit. — Schmalzgrueber, 
Jus Eeclesiasticum, vol. 4, Edition Rome, 1S44, Par. 3, Tit. 30, p. 551. 

(13). Contirmatio autem in forma speciali seu ex certa seientia quando actum ab inferiore gestum 
confirmat, pensatis et examinatis totius negotii circumstantiis et qualitatibus, adeoque cum perfecta 
ejusnotitia — Schmalzgrueber. 1. c. 

Signa ex quibus colligatur confirmationem factam in forma speciali sunt: 

(14). Si in instrumento, seu rescripto confirmation is inseratur totus tenor dispositionis, vel actus, 

qui confirmatur quia tunc constat principem sufficientem rei notitiam, et seientiam habuisse, 

ideoque vol uisse actum confirmare, et firmum vaiidumque reddere — Schmalzkruerer.I. c. 

pp. 552 and 553. 



12 

"If, in the rescript or letters of confirmation, there be expressly used the 
" clause ex eerta scientia, and this holds even if the text which is confirmed 
" be not inserted in the letters of confirmation." (15). 

"If the confirmation be made by words equivalent to the clause ex eerta 
" scientia." (16). 

" If from other words in the rescript confirmatory, or from what is therein 
" stated, it appear that the superior confirmed the act with full knowledge 
" of the cause." (17). 

From this teaching it is evident that the confirmation of a Council is spe- 
cific, or ex cert/i, scientia data, when it is made with full knowledge of the 

DECREES CONFIRMED. 

The proof that such knowledge was had, is : 

1st. If the whole text of the Council or decrees be inserted in the con- 
firmation. 

2ndly. If an examination of the Decrees were made prior to confirmation. 

odly. If the words ex eerta scientia be used 1 . 

4thly. If the rescript confirming contain other words of equal tenor so as 
to show that the one confirming had full knowledge of the decrees confirmed. 

The confirmation is in forma communi when all of these marks are wanting. 

What do the Roman documents say? 

In examining the Roman documents which confirm the Second Plenary 
Council of Baltimore, I find that they clearly contain the marks of the Confir- 
matio specifiea, sen ex ceHa scientia data. 

Of the many Roman documents sent to the Baltimore Fathers, three speak 
of the confirmation, viz.: The Apostolic Letter of the Holy Father, dated 
Sept. 2d, 1867; the letter from the Congregation of the Propaganda, dated 
January 24th, 1868, and an Inrtructio from the same Congregation, of the 
same date. 

The Pope says: " Concerning the Acts of the Council, which, on account 
" of your most laudable regard for Us and for the Holy See, you have gladly 
" submitted, according to ancient usage, to Our supreme judgment, and to the 
"judgment of the Apostolic See, you will receive a suitable answer from Our 
" Congregation charged with the Propagation of the Faith." (18). 

The Decree of the Propaganda reads : 

' ' The Sacred Congregation of the Propagation of the Faith in general 
" sessions held on the 16th, 23d and 27th of September, in the year 1867, 

(15). Si in rescripto sive J Uteris eimfirinationis expresse adjecta sit clausula "ex eerta scientia ;" pro- 
eeditque hoc etsi tenor dispositionis vel actus qui contirmatur, litteris illis non sit insertus — Schmalz- 

GKl'EBER. 1. C. 

(16). Si confirmatio fiat per verba qua; clausula? "ex eerta scientia" (equipollent. — Scmalzgrue- 

BKR. 1. C. 

(17). Si ex alliis verbis rescripti confinnatorii vel ex narratis in illo eonstet, prineipera cum plena 
causa; cognitione dispoMtionem vel actum confirmasse. — Schmalzgrueber. 1. c. 

(18). Quod autem attinet ad Acta memorati Concilii a Vobis concelebrati, qua? ex more majorum 

supremo nostro, et hujus Apostolical sedis judicio, pro eximia vestra crga Nos et Eandem Sedem 

observantia summis laudibus digna, subjicere gloriati estis, congruum de iisdem Actis a Nostra 

Congregatione Fidei Propaganda? pneposita accipietis responsum.— Acta et Decreta Con. Plcn. Bait. II. 
p. CXX XV. 



13 

" considered in a careful examination the Acts and Decrees of the same 
" (Second Plenary) Council, and, excepting some corrections and observations 
" which said Congregation ordered to be sent in the enclosed letter to the 
" Apostolic Delegate, most willingly acknowledged (or discerned) that said 
" Acts and Decrees should be inviolably observed by all whom they concern." 

"When in an audience, had on the 6th of October, said year, the under- 
" signed Secretary of the same Sacred Congregation, reported this decision 
" to our most Holy Lord, His Holiness approved of it in all its parts, and 
" commanded the expedition of this Decree to this effect." (19). 

The third document, the Instructio of the Propaganda, dated the 24th Jan- 
uary, 1868, reads : 

" In general sessions held on the 16th, 23d and 27th of September, of last 
" year, the Sacred Congregation for the Propagation of the Christian Name, 
" most accurately examined the Acts and Decrees of the Second Plenary 
" Council of Baltimore, held in the month of October, 1866, and, with cer- 
" tain exceptions given in this letter, fully confirmed the whole text of the 
" Council, having previously obtained the sanction of our most Holy Lord, 
" as Your Grace will understand from the Decree forwarded." (20). 

In other words the Roman documents show : 

1st. That the Fathers of the Second Plenary Council of Baltimore sub- 
mitted their Acta et Decreta for the judgment of the Holy See, or Supreme 
Pontiff. 

2ndly. The Pope, in his Apostolic Brief, promised the Baltimore Fathers 
a proper answer, viz.: the decision of the Holy See. 

3dly. The Propaganda was entrusted by the Holy Father with the exam- 
ination of the Decrees. 

4thly. The Propaganda examined them. 

5thly. The decision of the Propaganda was, that the whole text of the 
Baltimore Council, excepting those passages expunged in the Instructio, should 
be inviolably observed in this country. 

6thly. The Holy Father was informed of this decision by those whom he 
had appointed to examine the Acta et Decreta, and he confirmed their judgment, 
and commanded that a Decree to this effect should be made out and forwarded 
to us. 

(19). Sacra Congregatio de Propaganda Fide in generalibus comitiis habitis diebus 1(3, 23, 27 Sep- 
tembris, anno 1867, ejusdem (Plenarii Baltimorensis Secundi) Concilii Acta et Decreta diligenti inquisi- 
tione adhibita expendit, paucisque exceptis correctionibus et animadversionibus, quse in adjecta epistola 
memorato Delegato Apostolico significari jussit, eadem ut ab omnibus ad quos spectat inviolabiliter 
observer) tur libentissime recognovit. 

Quam Sacrae Congregation is sententiam cum subscriptus ejusdem Sacrse Congregationis Secretarius 
Sanctissimo Domino Nostro, in audientia liabita die 6 Octobris, anni prasdicti, retulisset, sanctitas sua 
in omnibus probavit, eaque super re Decretum hoc expediri mandavit. — Acta et Decreta Con. Plen. 
Bait. II. p. cxxxvi. 

(20). In generalibus comitiis, habitis diebus 16, 23, 27 Septembris, anni elapsi, Sacra Congregatio 
Christiano Nomini Propagando Acta et Decreta Concilii Plenarii Baltimorensis II., mense Octoberis, 
1866, celebrati, accuratissime ad examen revocavit, et quisbusdam exceptis quse hac epistola continentur, 
integrum Concilii textum, prout a Patribus emendatum et propositum est, accedente Sanctissimi Dom- 
ini Nostri sententia, plane recognovit ; uti ex alligato Decreto Amplitudo Tua intelliget. — Acta et 
Decreta Con. Plen. Bait. II. p, cxxxvii. 



14 

7thly. The whole text of the Council, with the exceptions indicated, 
was returned, therefore, with specific confirmation. 

I admit the Roman documents do not contain the formal words confirmantur 
Concilii Acta et Decreta coniirmatione ex certa seientia data. But Canonists, as 
quoted above, do not require that these formal words be actually used. They 
require only that words which are equivalent be found in the documents of 
confirmation. Moreover, the documents do contain phrases equivalent to ex 
certa seientia, for they show that a "careful examination " had been made, 
that "the whole text" of the Council is to be observed, that this was the 
sententia of the Holy Father, and that His Holiness commanded the expedi- 
tion of a Decree to this effect. 

In brief, the Roman documents answer the description Canonists give of 
the confirmatio ex certa scient : a data; hence the Acta et Decreta of the Second 
Plenary Council of Baltimore are confirmed confirmatione specifica sen ex certa 
seientia data. 

To this Rev. Dr. Smith, page 76, objects the words of Bouix: "Sola statu- 
torum recognitio et approbatio a Sacra Oongregatione facta non est Pontificia 
confirmatio saltern in forma specifica;" "That recognition or approbation of 
.... statutes which is made by the Sacred Congregation alone, is not the 
Pontifical confirmation, at least is not the confirmation in forma specifica." 

This objection is not to the point, as the Roman documents confirming the 
Baltimore Decrees contain more than the "sola recognitio et approbatio a Sacra 
Congregatione facta." They contain the sententia of the Supreme Pontiff, who 
commanded the sending of a Decree to the effect that they are to be observed 
by all whom they concern. 

On page 75, lie holds that Pope Benedict XIV. teaches that the specific 
confirmation is to be given "by letters apostolic." — 

Rev. Dr. Smith does not correctly quote Pope Benedict XIV. on this point. 

Here is the passage in question: 

" Sixtus V. commanded that the Statutes of Provincial Councils, before 
' being published, should be transmitted to the Sacred Congregation of the 
' Council, not that they might afterwards obtain confirmation from the 
' Apostolic See, but that they might be corrected if perchance there be found 
' in them something excessively rigorous, or not sufficiently consonant with 
' reason ... for it sometimes happens that Provincial Councils are not 

' only reviewed by the Sacred Congregation and corrected, when necessary , 

' but also, at the request of the metropolitans who held the Councils, confirmed 
' by the Holy Father by Apostolic Letters." (21) 

This merely shows that sometimes the Holy Father confirms by Apostolic 
Letters. But it does not show that he has not the power of confirming, or 

(21). Ea (concilioruni Provincialium statu ta), antequam promulgentur transmitti jussit Sixtus V. ad 
Sacram Congregation em Concilii; non quidem ut postea conflrmation.em reportent a Sede Apostolica, sed 
ut corrigantur, si quid fortasse in iisdeni aut nimis rigidum, aut minus rationi congruum deprehenda- 
tur. Non semel lamen accidit, Provincialia Concilia, non solum a sacra congregatione concilii recognosci, 
et, si opus fuerit emendari, verum etiam a Suramo Pontifice, ita petentibus metropolitanis, a quibus 
sunt celebrata, per Apostolicas Litteras conflrmari. Benedict, XIV. de Syn. Dicec. Lib. 13. cap. 3. N. 3. 



15 

that he never does it, by means other than "Letters Apostolic," and this is 
the question at issue. 

On the same page Rev. Dr. Smith quotes Bouix as teaching that the specific 
confirmation "must be given by Letters Apostolic." This is not Bouix's 
teaching in the passage quoted (de Episcopis, vol. 2, p. 394). 

One might sustain the p>roposition that there is no poiver in the church to make a 
permanent laiv obliging Popes to use "Letters Apostolic" in confirming councils. 

Now, according to this same Pope Benedict XIV., it is certain that the 
confirmation of the Baltimore Decrees is not, and can not be a confirmalio in 
forma communi seu ordinaria. 

He Says: 

" Those Statutes are said to be confirmed in forma communi which are not 
" singly examined, nor approved by the Pontiff motu proprio et ex ceria scientia, 
" and the force of Apostolic authority is not given them absolutely but only 
"conditionally, namely, if they be framed justly, canonically, and wisely, 
" and providing they are not opposed to the Sacred Canons, the Decrees of Trent 
"and the Apostolic Constitutions. Fagnanus attests that this last condition, 
" according to the usage of our time, is expressed in all confirmations of 

" STATUTES IN FORMA COMMUNI." (22). 

But this condition is not expressed in the confirmation of the Baltimore 
Decrees. Therefore, said confirmation is not the confirmatio in forma communi 
seu ordinaria. Consequently the Decrees of the Second Plenary Council of 
Baltimore are confirmed confirmatione specifica, seu ex certa scientia data. 

It will readily be perceived that the question here is iiot one of appeal from 
the misinterpretation or misapplication of the Baltimore Decrees. The 
question is concerning the force of those Decrees per se, or when rightly inter- 
preted, and rightly applied. 

The question is not lias the Pope poiver to abrogate the Baltimore laws, as well 
as diocesan or provincial laws. The question is did Rome approve of the 
Baltimore Decrees in such a maimer that they are invested with all the bind- 
ing force the highest Papal approval can give to Decrees of Plenary Councils, 
and are said Decrees of force until revoked by the Holy See. 

The above argument proves that the answer must be affirmative. Hence 
the Baltimore Decrees are, for us, permanent laws or counsels [according to 
the tenor of the particular numbers] from which no appeal lies; for an appeal 
is carrying a cause from an inferior to a superior, and the Pope confirming 
confirmatione specifica has no superior. But if the Baltimore Decrees are void 
at Rome, our Bishops, when ruling according to them, are at sea — and the 

(22). In forma communi confirmari dicuntur statuta, quse non singulatim exaininantur neque 
approbantur a Pontifice "motu proprio et ex certa scientia," atque Apostolicse auctoritatis robur illis non 
adjicitur absolute sed solum conditionate, videlicet, si juste, canonice aut provide facta sint; et dummodo 
sacris canonibus, Tridentini concilii decretis, et Constitutionibus Apostolicis non adversentur : quam postre- 
mam conditionem omnibus statutorum coiifirmationibus in forma communi hodie exprimi solere idem 
Fagnanus (in cap. si quis, No. 12, de confirmatione utili et inutili) testatur. Benedict. XIV. de Syn. 
Dicec. Lib. 13, Cap. 5, No. 11. 



16 

sea is a stormy one — they labor to reach a port of safety only to be turned 
out to sea again ; and when they shall have gone the whole round they will 
still be at sea, and sailing for a harbor is a mockery. t Why, on this 
hypothesis the Baltimore Decrees might be called a will-with-a-wisp, an ignis 
fatuus, and have no binding force whatsoever. 

Is it for this our Bishops and theologians went to Baltimore in 1866? 

Is it such Decrees the Pope commands us to observe? 

My apology for the length of this article is the gigantic importance of the 
question treated, and the fact that a short newspaper article of assertion, 
assertion, assertion, might not suffice to remove the impression Rev. Dr. Smith's 
teaching has created, nor to correct effectually the blunder the Pastoral Blatt, 
in its number of last August, fell into, in asserting that Dr. Smith's teaching 
on this question is correct. 



REMOVAL OF PASTORS ix the UNITED STATES. 



SECOND ARTICLE. 



II. The Rev. Dr. Smith teaches, on page 158 of the Elements of Ecclesias- 
tical Laiv, that : 

"Delegated jurisdiction may be validly withdrawn without cause." 
And on page 376, he says : 

"Our pastors (in the United States) are not parish priests and have but 
" jurisdictw delegata." 

The necessary conclusion of these two propositions, when placed as the 
major and minor of a syllogism, would be, therefore, the jurisdiction of priests 
in the United States may be validly withdrawn without cause. 

Again, on page 167, he says : 

" As all our pastors are amovibiles ad nutum episcopi they can be transferred 
" against their will validly indeed, though not lawfully except for sufficient reasons." 

Yet in the face of this teaching the author holds, on pages 179 and 180, 

that : 

" In case a pastor (in the United States) is removed w caum, without at the 
" same time being placed over another congregation of equal importance, he may 
"have recourse to the Superior for redress, since such removal would seem to be 
"not only illicit, but invalid.' 1 '' 

I do not object to the probability, or desirability of ' ' redress " or 
re-instatement in such cases; but I must object to the reason advanced ; and 
am confident Dr. Smith, upon careful reflection, would not hold that such 
removal is " invalid." The cause of this blunder is that in the objection- 
able passage he does not duly distinguish between removal of those who 
have delegated jurisdiction, and of those who are possessed of ordinary jurisdic- 
tion. On page 179 he advance* the law showing that Canonical Pastors, 
even when they are ad nutum revocabiles, cannot always be removed without 
cause', and then applies this teaching to our priests. But the fact that 
Canonical Pastors, even when they are amovihiles ad nutum episcopi, are 
possessed of ordinary jurisdiction, shows that the law given for them does not 
apply to our missionary priests, who have but delegated jurisdiction. 



18 
CANONICAL PARISHES in the UNITED STATES. 

III. On pages 115, 126, 165, 167, 178, 371, and 376, the Rev. author of 
the Elements teaches that there are no Canonical Parishes in this country ; on 
page 149 he teaches that there is one Parish in New Orleans ; and on pages 
110, 376 and 386 he teaches that there is no Canonical Parish now in New 
Orleans, and that there are Canonical Parishes in California. 

These several teachings plainly contradict each other, and, excepting the 
teaching that there are no Canonical Parishes in the United States, they are 
all false. The erudite Father Konings shows that the one Canonical Parish 
which existed in New Orleans was abolished thirty years ago, the Holy See 
approving. (1) This eminent Redemptorist also states that in California 
there are some Parishes properly so-called, and he so construes No. XVI. of 
the First Provincial Council of San Francisco, held in the year 1874, as to 
make it appear that there are some Canonical Parishes in California. (2) 
Now in the Acta et Decreta of the said Council, I find on page 14, No. 17, 
the following amongst the questions proposed for synodical deliberation : 

"What decree is to be framed to determine the duties of the Pastor toward 
" the faithful of his Church, and the duties of the faithful toward the Pastor?" (3) 

And on page 20, I find when this question came up for deliberation that : 
" Very Rev. Lentz, Prendergast (4) Vilarrasa (5) and Monogue (6) were in 
" favor of a decree in which there would be distinctly enumerated the mutual 
" duties of the Pastor and the faithful, especially all that regards paschal com- 
" munion and the support to be given the Pastor, with, however, due consid- 
" eration for those people whose residence is too far removed from the parish 
"church." (7) 

(1.) Parochia existit in Statibus Fcederatis, jaxta declarationem Concilii Plenarii Baltimorensis II., 
No. 10S, inixam declarationi Concilii Provincialis Baltimorenis I., unica, nimirum in civitate Neo- 
Aurelia. Sed nt inquirenti mini rescriptum fuit, ab aimis circiter 30, ratihabenti Sancta Sede, extincta 
fait. Konings, Theolog. Moral, vol. II., p. 270. 

(2). In California quaedani habentur parochiae proprie dictse, in quibus, licet non regantur a Paro- 
cliis proprie dictis, Fideles eorumque Pastores seu Rectores vi juris communis iisdem erga se invicem 
offieiis devinciuntur, quibus parochiani et Parochi proprie dicti. Patet ex sequentibus verbis Patrum 
Concilii Provincialis Sancti Francisei I. anni 1874: "Declaramus Rectores earum parceciarum, quse 
habentur uti paroeeise proprie dicta?, teneri ad omnia munera Parochorum erga fideles intra limites 
suarum ecclesiarum constitutes adimplenda; fideles autem jus habere ad subsidia spiritualia ab illis seu a 
propriis animarum Rectoribus recipiendum, ac specialiter teneri ad ipsos recurrere pro Communione 
Paschali, Baptismo, Viatico, Extrema Unctione et Matrimonio." Ex his concludenum videtur Rectores 
istos, non secus ac Parochos proprie dictos, teneri ad Missam pro populo off'erendam et valide ac licite 
parochianorum suorum confessiones ubique excipere. Konings, Theol. Moral, vol. I., p. 471. 

(3). Q-uodnam decretum efformandum ut munera Pa'storis erga suae Ecclesiae fideles ac eorumdem 
fidelium erga Pastorem dignoscantur? 

(4). Who were Theologians of the Provincial Council. 

(5). Who was the Commissarius Generalis of the Dominicans in California, and a member of the 
Council. 

((>). Also a Theologian of the Council. 

(7). Revdi. oratores Lentz, Prendergast, Vilarrasa et Monogue favent decreto, quo ofiicia mutua 
Pastoris et fidelium, prsesertim qua? respiciunt communionem paschalem et subsidia Pastori tribueuda, 
distincte enumerentur, duminodo justa ratio habeatur eorum quorum domus ab Ecclesia parochiali 
nimis distant. Concilii Provincialis >s. Francisei I., Acta et Decreta, pp. 14, 20, 28. 



19 

These are the lights by which we are to read the Decree formulated and 
published on page 28 of the Acta et Decreta of the First Provincial Council of 
San Francisco, and quoted by Konings. Neither of these passages shows that 
it was the intention of the Council to erect Canonical Parishes, nor does the 
Decree show that any such erection was made. A strict interpretation shows 
that the intention was merely to determine the mutual duties of pastors and 
people in the Province of San Francisco. But it does not appear that the 
Archbishop and his Suffragans intended by the Decree in question to create 
Canonical Parishes, or to change that status of parishes, which existed there 
prior to the Provincial Council. 

As a confirmation of my reading of the First Provincial Council of San 
Francisco, I am able to state that on the 3d of last December a very high au- 
thority in California wrote me his opinion regarding this question saying : 
"I think that in this Our Province there is no Parish canonically constituted." 

Wherefore there are no Parishes canonically erected in the United States. 



20 



DISMISSAL of PASTORS in the UNITED SATES 



AND 



SUSPENSION EX INFORMATA CONSCIENTIA. 



a 



THIRD ARTICLE. 

IV. On page 381 of the Elements of Ecclesiastical Law, Rev. Dr. Smith 

writes : 

" How are pastors in the United States dismissed from their parishes ratione 
"■criminis? We premise the withdrawal of faculties (revocatio faadtatum) with us 
" is equivalent to dismissal from the parish (privatio parochise). We now an- 
swer : Pastors with us should not be dismissed save on regular trial, to be con- 
" ducted by the Bishop and two priests selected by him. Now, are Bishops in 
" the United States not merely exhorted but obliged, to observe this method in dis- 
" missing pastors? The Second Plenary Council of Baltimore (No. 771 thus 
" answers : ' Quamque (i. e. normam, — namely, mode of procedure or trial by 
" Bishop and two priests) legis esse communis statuunt hujus Plenarii Concilii 
" Patres.' The Council, therefore, enacts that henceforth this shall be the common 
" law all over the United States, viz : ' No priest accused of an offence shall be pun- 
" ished save on a regular trial, to be conducted by the Bishop and two priests 
" selected by him.' " 

In this passage there are two grave errors, one, a misconception of No. 77, 
of the Second Plenary Council of Baltimore, and the other, a repudiation of 
the teaching of Canonists, and of the Council of Trent, upon suspension ex 
informata conscientia. 

The Baltimore Decree reads : 

" Finally, let there be chosen, from tne members of the Diocesan Council, 
" if the Bishop see fit, two Judices causarum, who, by Episcopal delegation, 
" shall sit in judgment upon priests charged with crime in the first instance; 
"and shall proceed according to the rule which was prescribed in the Pro- 
vincial Council of St. Louis, held in the year 1855, and approved by the 
" Holy See, and which the Fathers of this Plenary Council embody into the 
•' common law (literally, enact as of the common law). The aforesaid Decree 
" is as follows : ' Priests who have been interdicted from the exercise of the 
" priesthood by sentence of the Ordinary, have no right to ask support from 
" him, as by their own fault they rendered themselves incapable of taking charge 
" of missions. But, that all cause of complaint may be removed, the Fathers 
" think it entirely expedient that in criminal causes of clerics and priests, the 



21 

" Ordinaries observe a certain form of judicial proceedings, .which resembles, 
"as near as possible, the form prescribed by the Council of Trent, namely: 
" the Bishop, or his Yicar General commissioned by him, shall select two of the 
"Episcopal Council, but he shall not always select the same two, who shall 
"assist him, in presence of the Episcopal Notary, in judicial proceedings 
" against a priest accused of crime, etc.'" (1) 

The principle lex est strictae interpretation-is permits us to conclude from this 
passage of the Baltimore Council only that : 

1st. The Council of Trent prescribed a form of judicial proceedings to be 
observed by Ordinaries in certain cases before pronouncing sentence of con- 
demnation upon priests. 

2ndly. This form is trial by an ecclesiastical court comprising the Bishop, 
two judices causarum, etc. 

3rdly. The Fathers of the Provincial Council of St. Louis, held in the 
year 1855, recommended as most expedient the observance, in the Province of 
St. Louis, of this canonical trial in causis criminalibus. 

4thly. The Second Plenary Council of Baltimore enacted as a law for the 
United States the canonical trial as recommended by the Provincial Council 
of St. Louis. Hence this law of Baltimore, like the counsel of St. Louis, 
applies only to cases of priests who are accused in causis criminaUbus, with all 
the publicity Canon Law mentions as characteristic of such cases. 

Wherefore, Rev. Dr Smith in applying this law to every priest who for any 
"offense" may be about to be dismissed from a parish, falsely interprets 
the law which was enacted only for some specified cases. 

Again, his interpretation of this law repudiates the teaching of canonists and 
of the Council of Trent upon suspension, or dismissal, ex informata conscientia. 

Suspension ex informata, conscientia is that which is declared by the Bishop 
upon obtaining information privately, and, in conscience accepting it, without 
any canonical trial, or without any verdict rendered after judicial proceedings 
for the examination of evidence. By force of this power Bishops, without 

(1). Demum, ex eorumdeni Consultorum numero, si Episcopo videatur, seligantur Judices Causarum 
qui sacerdotes crirainis postulates in prima instantia, ex Episcopi delegatione, judicent; juxta normam 
qua; in Concilio Provinciali Bancti Ludovici, anno 1855 habito, a Sancta Sede recognitam prsescribebatur, 
qumique legis esse communis statuunt hujus Plenarii Concilii Patres. Decretum prsedictum est hujus- 
modi. 

" Sacerdotes quibus per ordinarii sententiam saeerdotii exercitium interdictum fuerit, nullum jus 
habent ad sustentationem ab eo petendam, cum ipsi se sua culpa missionibus operam navandi incapaces 
veddiderint. Ut autem omnis causa querelarum tollatur, censent Patres omnino expedire, ut Ordinarii, 
in causis criminalibus clericorum aut presbyteroruin, servent certam judicii formani, quae ad illam a 
Concilio Tridentino prsescriptam (Sess. 25, cap. 6; de Reform.) quam proxime accedat; scilicet, ut Epis- 
copus, seu ejus Vicarius Generalis, de ipsius commissione, duos ejusdem Episcopi Consultores, nee sem- 
per eosdem eligat, qui ei presbyteruni criminis postulatum judicature-, coram Notario tamen ipsius 
Episcopi, assistant. Ununi autem sit utri usque votum, possitque alter Episcopo accedere. Quod si 
ambo ab Episcopo, seu ejus Vicario, discordes fuerint, tertium tunc ex pra?dictis suis Consultoribus ipse 
eligat, et juxta earn partem, cum qua tertius convenit, causa terminetur. Si autem contigerit omnes 
Consultores, ab Ordinario electos, ab ejus sententia dissidere, tunc ad Metropolitan um causa referri 
debet, qui sententiarum motiva expendet et judicium feret. Quando autem quaestio erit de subdito 
Metropolitan! criminis postulato, et omnes Assessores Metropolitani ab ejus sententia dissenserint, tunc 
appellatio flat ad seniorem Episcopum comprovincialem, cujus sententia finalis erit, sal vis semper Sedis 
Ap.wtolic.e privilegiis et auctoritate." — Con. Plen. II. Bait., p. 57-58 n. 77. 



22 



mijjicridbG.il pro oft, and merely upon sufficient extrajudicial information, can 
interdict from the reception of orders ; can suspend priests from ecclesiastical 
offices, dignities, positions and honors for the space of six months \ and, pro- 
vided they state that they have acted ex informata conscientia, they are not 
obliged to make known to priests the cause of suspension. If, however, re- 
course be had to the Holy See, Bishops are obliged to submit their reasons to 
the authorities at Rome, who have power to reverse the judgments rendered 
by Bishops. This suspension can be inflicted only for occult crimes. 

Vicars General or Vicars Capitular can not ex potentate ordinaria suspend 
ex informita conscientia, though they are capable of receiving the power to so 
suspend, and can exercise it when specially delegated by the Bishop to do so. 
Administrators, who are not Vicars Capitular, can never exercise this power, 
because they do not possess it ex potestate ordinaria 7 and are incapable of re- 
ceiving it as potestas delegata. 

No one but a Bishop can ex potestate ordinaria suspend, or remove, ex infor- 
mata conscientia. Bishops can not exercise this power to excommunicate, or 
interdict a community or district, or to inflict any ecclesiastical penalty other 
than those given above. 

This, in a condensed form, is the general teaching of canonists on this 
question. (2) 

The Council of Trent also advances this same principle, and teaches that 
Bishops have the power to* suspend priests on merely extrajudicial in- 
formation. (3) 

Gallicans and Jansenists denied that this was the real teaching of Chapter 
the First, Session the Fourteenth, de Reformatione, of the Council of Trent; 
doubts were submitted to the Holy See ;• on the 24th of November, in the 
year 1657, a Decree of the Sacred Congregation of the Council decided that 
this was the correct interpretation. (4) Moreover, the proposition which re- 
jects as null aad invalid suspensions ex informata conscientia has been condemned 
in the Bull Amtorem fidei as false, pernicious and injurious to the council of Trent.. 
Again, the proposition that Bishops of themselves alone are not allowed to use 
this power of suspending ex informata conscientia, has been condemned in the 
same Bull as injurious to the jurisdiction of the Prelates of the Church. (5) 

(2). Vide Dr. Stremler, des Peines Ecclesiast. p. 310-340. 

Bouix, de Judiciis Ecclesiast. vol. 2, p. 320-, etc. 

Craisson, Manuale Jims Can. Pict. 1875, vol. 4, p. 184-191. 

Benedict XIV. de Synod. Dioec. Lib. 12, Cap. 8. 

(3). Ei cui ascensus ad sacros ordines a suo Prselato ex quacumque caum, etiam 6b occuttum crimen 
quomodolibet, etiam extrajudicialiter, fuerit interdictus; aut qui a suis ordinibus, seu gradibus, vel digni- 
tatib us ecclesiasticis fuerit suspenses; nulla, contra ipsius Praslati voluntatem, concessa licentia de se 
promoveri faciendo; aut ad priores ordines, gradus, dignitates sive honores restitutio suffragetur. — Con. 
Trid. Sess. XIV., Cap. I, de Eeform. p. 95. Ed. Bonise. 

(4). Vide Craisson, Manuale Juris Can. r vol. 4, p. 185. 

(5). 49. ItemquEe damnat ut nullas et invalidas suspensiones- ex informata conscientia; falsa, per- 
nio iosa, in Trident inum injuriosa. 

50. Item in eo quod insinuat soli Episcopo fas non esse uti potestate, quam tamen ei defert Trident. 
(Sess. 14. c. I., de Beform.) suspensiones ex informata conscientia legitime infiigendi; jurisdictionis Prce- 
latorum Ecclesus kesiva. 



23 

There were canonists who thought the words etiam ob occidtum crimen of 
the Council of Trent, presuppose that Bishops have this power as to all public 
crimes. This teaching, however, is now generally rejected. Eev. Dr. Stremler, 
who is quoted as an authority by some of the most eminent and recent canon- 
ists, and whose position at Rome afforded him rare facilities to master this 
question, writes: " Occult crimes, and those crimes which strictly speaking are 
"not occult, but which, nevertheless, on account of certain peculiar circum- 
" stances, cannot be brought before the forum contentiosum, or become matter 
"of a formal trial, are the only ones on account of which the Bishop can 
"inflict suspension extrajudicially: Outside of these two cases the ordinary 
"canonical proceedings cannot be omitted." (6) 

That Bishops shall not, in cases of public delinquencies, depart from the 
ordinary trials unless when they have sufficient reason, is the general teaching 
of canonists. (7) 

Hence, as Rev. Dr. Stremler shows, when the crime be occult, or even 
when it is not strictly speaking occult, but certain peculiar circumstances are 
against an ecclesiastical trial, Bishops have the power to suspend or dismiss 
ex informata conscientia. Canonists in general, various Roman decisions, and 
the Council of Trent establish this power beyond all question. Hence ap- 
pears the falsehood of Rev. Dr. Smith's teaching that: "no priest accused of 
"an offense shall be punished save on a regular trial," and that: "Pastors 
" with us should not be dismissed save on a regular trial." The Baltimore 
law gives our priests a right to expect or demand a canonical trial only in 
causis criminalibus and when the Bishop has no power to suspend ex informata 
conscientia. 

No charge of ignoratia elenehi can be sustained against this, on the ground 
that Dr. Smith speaks of dismissal from parishes and the above shows only 
that Bishops have power to suspend ex informata conscientia, or to withdraw 
faculties ; for on page 381, Dr. Smith says : "The withdrawal of faculties with 
us is equivalent to dismissal from the parish." 

What Rev. Dr. Smith says, on pages 174 and 175, of the rights of canon- 
ically constituted Pastors as against the Bishop depriving them of their benefices 
by any ex informata conscientia action, does not apply to our priests who are 
not canonically constituted Pastors. 



(6). Les delits occultes, et les dclits qui, sans etre rigoureusement occultes, ne peuvent cependant 
pas, a raison de certainos circonstances specialcs, etre deduits au for contentieux et devenir matiere d'un 
proces en forme, sont les seuls pour lesquels l'Eveque puisse infliger la suspense extrajudiciaircment: 
hors ces deux cas, il ne saurait omettre la procedure ordinaire. — Dr. Stremler, des Peines Eccles. p. 316. 

(7). Council of Trent, Sess. 24, Cap. 5. 

Pope Innocent III. Constitutio Qualiter et quando, 

Pope Benedict XIV., de Synod. Lib. 12, Cap. 8. 

Bouix, de Judiciis, Tom. 2, p. 342 et seq. 



24 

The following passages, from the Second Plenary Council of Baltimore, speak 
clearly of the power of our Bishops to dismiss or to remove our priests : 

"We admonish all priests residing in these Dioceses, whether they were 
" ordained here, or adopted into the Dioceses after they received Orders, that 
" mindful of the promise made at their ordination, they shall not refuse the 
" charge of any mission whatsoever designated by the Bishop." (8) 

"In using the terms parochial right, parish, and pastor, we by no means 
" intend .... to take away or in any manner diminish the power of 
"depriving any priest of his charge and transferring him elsewhere, which, 
"according to the discipline obtaining in these provinces, the Bishop 
''possesses." (9) 

Is it not strange that Rev. Dr. Smith should have advanced his teaching 
regarding canonical trial, whilst he so often states that our priests are amovi- 
biles ad nutum episcoptf 

(8). Monemus onmes saoerdotes in hisce diooccsibus degontes, sivo f uerint in its ordinati sive in 
easdam co-optati, ut, memores promissionis in ordinatione emissae, non detrectent vacare cuilibet mis- 
sioni ab Episcopo designate. — Acta et Decreta Con. Plen. II. Bait., p. 75, No. 10S. 

(9). Parochialis juris, parosciae et parochi nomina usurpando, nullatenus intendimus potostatem 

illam tollere sen ullo modo imminuore, quam ex recepta in his proviociis diseipiina h»bot ]'"]i)!sc(ipus 
quciuvis saccrdotem munere privandi ant alio transferendi. — Con. Plen. II., Bait. p. 7S., No. 125. 



25 



ERECTION OF CANONICAL PARISHES IN THE 

UNITED STATES. 



FOURTH ARTICLE. 



"V. Rev. Dr. Smith, on page 109 of the Elements of Ecclesiastical Law, 
writes : 

" There can be no doubt that Bishops, by virtue of their potestas ordinaria, can 
" create new parishes — that is constitute priests who shall have care of souls in 
"their own name and by virtue of their office, in such districts and over such 
" people as are not yet aggregated to any other parish." 

Let due credit be given to the Reverend author for having translated this 
teaching from Dr. Bouix. But, as the question of creating Canonical Parishes 
in the United States is most interesting in our time, one may be pardoned for 
finding fault with Dr. Smith for not attempting to apply the above teaching 
to the United States, especially as he so often does apply the general teaching 
of law to this country, and announces, on the title page, that his work is 
" adapted especially to the discipline of the Church in the United States." 
Also, the old axiom, bonwn ex integra causa ; malum autem ex quocumquedefectu, 
leaves the Doctor open to criticism for not applying the doctrine on this point 
to this country, and for not treating the question as to whether Bishops in the 
United States have the power to change our missions into Canonical Parishes. 
The only change spoken of in this country is that of changing Canonical Pas- 
tors who are movibiles ad nutum Episcopi into Pastors possessed of the jus ina- 
movibilitatis, and vice versa. 

His words (pp. 110 and 111) are: 

" Can parishes whose pastors are removable ad nutum be changed by the 
sole authority of the Bishop, into parishes whose rectors are irremova- 
ble, and vice versa ? It seems that, de jure communi, this change can be 
made by the Holy See only. . . . Custom, it would seem, may authorize 
Bishops to make this change even without leave from the Holy See. 
Thus, according to Bouix, the Bishops of France, without being empowered to 
do so by the Holy See, sometimes change parishes whose pastors are removable 
into parishes with irremovable pastors. Whether custom in the United States 
may enable our Bishops to undertake this change, we shall not decide. We 
feel inclined to think it cannot ; for, apart from the law forbidding such change 
by Bishops, ail causae majores — i. e. matters of greater importance — are to be re- 
ferred to and determined by the Holy See. Now, no one will deny that to make 
pastors in the United States irremovable, even though it be in the larger cities 
only, is a change of no ordinary moment, especially as all pur pastors are at 
present amovibiles ad nutum episcopi. There can be no doubt, however, that 
whenever, in the judgment of our Bishops, this change becomes opportune, it 
will readily be permitted by the Holy See." 



m 

How singular that Dr. Smith should go on to speak of the " custom " of 
changing Canonical Parishes in this country, without having spoken of the 
erection of Canonical Parishes here. Moreover, if the importance of the mat- 
ter forbid Bishops to make a change, except by special papal authority, our 
Bishops have no power to change our missions into Canonical Parishes, as "no 
" one will deny" that to make such change " even though it be in the larger 
" cities only, is a change of no ordinary moment, especially as all our Pastors 
" are at present amovibiles ad nudum episcopi." 

Some thoughts upon the power of our Bishops in this matter may be worthy 
of attention. 

It may be a source of light to mention the various questions relating to this 
point : 

1st. The formation of missions or congregations, such as we now have, 
throughout the States. 

2ndly. Erecting our missions into Canonical Parishes with movable Pastors. 

3dly. Erecting our missions into Canonical Parishes with immovable Pastors. 

4thly. Changing canonically erected Parishes whose Pastors are movable 
into Parishes with immovable Pastors, or vice versa. 

5thly. Erecting Canonical Parishes per viam dismembrationis, or from dis- 
membered, or portions of dismembered Parishes. 

6thly. Erecting Canonical Parishes per viam unionis, or by uniting Canon- 
ical Parishes. 

The first of these questions offers no difficulty ; the fourth, fifth and sixth 
are of no practical use to us now as they presuppose the existence of Canonical 
Parishes, though certainly they are to be treated in a Course of Canon Law. 
We may dismiss the third with the observations that immovability is not es- 
sential to the existence of Canonical Parishes, and even if we were to have 
such Parishes here, one might defend the proposition that there are very grave 
reasons against making Pastors in the United States immovable. The second 
question is the one that is the most essential for us. 

Bishops in the United States have the power to change our missions into 
Canonical Parishes. The following is the argument that now offers : The 
United States Bishops have that- power which is within the ordinary power of 
Bishops. Moreover, the creation of Canonical Parishes is within the ordinary 
power of Bishops. Therefore, the - Bishops in the United States are possessed 
of the power to create Canonical Parishes. The first proposition will not be 
questioned. It is necessary to prove only the second to have the conclusion 
admitted. The Council of Trent says: "In those cities and places where 
' ' parochial churches have not definite limits, and where rectors have not their own 
" people to rule, but administer the sacraments to those promiscuously asking 
" them, the Holy Synod commands Bishops, for the surer salvation of those souls 
" entrusted to them, to divide the people into definite and proper parishes and as- 
" sign to each its own perpetual, special pastor who may be able to know the souls, 
" and from whom alone they can lawfully receive the sacraments, or to provide 



•> 






" for this by other, more useful, means according as the character of the place 
" demands. The Holy Synod also commands Bishops to erect, as soon as possible, 
" parish churches in those cities and places where there are none, any privileges 
"or customs whatsoever, even those which are immemorial, to the contrary 
"notwithstanding." (1) 

Again,' the Council of Trent teaches: 

" Iu all those Parochial, or baptismal churches,, .... which, on ac- 
" count of distance or difficulty, the parishioners can not, without great in- 
" convenience, attend, to receive the sacraments, and be present at the divine 
"offices, the Bishops, even as delegates of the apostolic see, can 
" erect new partshes, even in case the rectors are unwilling, according to 
" the rule of the Constitution of Alexander III, which begins Ad auclientiam 
" . . . And such erection cannot be impeded, or annulled by any laws 
" or derogations whatsoever." (2) 

In the year 1170, the Bishop of York found it necessary to erect a second 
church within the limits of the Canonical Parish of H — , as the circumstan- 
ces of the location of the Parish Church, made it very difficult for many per- 
sons to attend the services in winter. The case was sent to Rome. This called 
out the Constitution Ad audientiam of Alexander III. in which his Holiness 
approved of accommodating the people, and commanded the Bishop of York 
to divide the old Parish, erect another Parish Church and appoint the Rector. 
About four centuries later the Council of Trent referred to this decretal, ap- 
proved the principle it involved, and framed the law for Bishops to erect 
Parishes per viam dismembrationis. (3) 

Canonists, in general, teach that Bishops have the power to create Canonical 
Parishes. Quotations from a few authors will suffice. In his definition of a 
Parish, Rieffenstuel says : 

. "A Parish is a certain territory or district determined by the Pope or 
" Bishop, having a permanent rector, etc." (4) 



(1) In iis quoque civitatibus, ac locis, ubi parochiales ecclesiee certos non habent fines, nee earuni 
rectores proprium populum, quem regant ; sed promiscue petentibus sacramenta administrant ; mandat 
sancta synodus episco2>is, pro tutiori animarum eis commisarum salute, ut: distincto popnlo in eertas 
propriasque parochias, unicuique sunm perpetuum peculiaremque prochum assignent, qui eas cognoscere 
valeat, et a quo solo licite sacramenta suseipiant; aut alio utiliore modo, prout loci qualitas exegerit, 
provideant. Idemque in iis civitatibus ac locis, ubi nullse sunt parochiales Ecclesise, quamprimuni 
fieri curent : non obstantifus quibuscumque privilegiis et consuetudinibus, etiam irnineniorabilibus. 
Concil. Trident. Sess. 24, de Be/or. Cap. 13. 

(2) Episcopi, etiam tanquam Apostolicoe Sedis delegati, in omnibus ecclesiis parochialibus, vel bap- 

tismalibus in quibus ob locorum distantiam, sive difficultatem, parochiani, sine niagno incommodo 

ad percipienda sacramenta etdivina oflicia audienda accedere non possunt, novas parochias, etiam invitis 
rectoribus, juxta forniam constitutionis Alexander III., quae incipit Ad audientiam constituere pos- 
.«'w<......Quacumque reservatione generali, vel speciali, vel affectione, supra dictis ecclesiis non obstanti- 

bus. Neque hujusmodi ordinationes, et erectiones possint tolli, ncc impediri, ex quibuscumque pro- 
visionibus, etiam vigore resignationis, aut quibusvis aliis derogationibus, vel suspensionibus. Con. 
Trident. Sess. 21, de Reform. Cap. 4. 

(3) Vide Bouix, de Parocho, p. 247. Paris Ed. 1867. 

(4) Parochia est certum territorium seu districtus, per Papam vel Episcopum determinatus, habens 
iinum rectorem stabilem. Rieffenstuel, Jus Can., vol. 4, p. 290. 



Again, this author proves the following proposition : 

"Besides the Pope only the Bishop can and ought to erect and divide 
"Parishes:" (5) 

In proof, he quotes the Council of Trent, as given above, and says this is 
the teaching of Barbosa (6) and of Canonists in general. 

He also proves the proposition : 

" For the existence of a Parish it is required that it be erected by the author- 
" ity of the Pope or Bishop." (7) 

This authority also teaches that Bishops can and ought to erect new Parishes 
per viam dismembrationis. He says : 

" There are causes on account of which a new church can be built to the 
" prejudice of another, even a Parish Church ; especially if, on account 
" of the distance, the inhabitants of the place cannot attend the old church 
" without great difficulty, especially in the winter season, or during inunda- 
" tions : In this case it is expressly enacted by the Council of Trent that 
" the Bishop can and ought to erect a new Parish Church even when the 
" Pastors of the old churches are unwilling or are injured thereby." (8) 

To the question, what is required that a church may be called parochial, 
Schmalzgrueber answers : 

' ' The power of binding or loosing in the tribunal of Penance. 

"A district circumscribed by certain limits within which the people as- 
" cribed to the church shall dwell. 

" The authority of the Bishop designating its limits and assigning its parish- 
ioners." (9) 

Bouix, speaking of the creation of Canonical Parishes in Europe, says : 

"It very rarely happens that there is found a territory or people not yet 
' ' ascribed to some Parish ; " but turning his attention to such countries as 
ours, he observes: "In countries of infidels, lately converted to the faith, 
" there is room for the erection of new Dioceses and for the creation of new 
"Parishes." He then lays down the following principle: "There is no 
"doubt that by his ordinary power & Bishop can erect into a Parish that 
" district or people which had never been ascribed to any Parish ; that is he 



(5) Parochias erigere et dividere prseter Papam s.nus potest et debet episcopus. Rieffenstuel, Jus Can., 
vol. 4, Paris Ed., 1867, pp. 590-591. 

(6) Can. nullus oinnino. II. can. 16. q. 7. 

(7) Ad parochiam requiritur ut auctoritate Papa? vel episcopi sit erecta. Rieffenstuel, 1. c. 

(8) " Dantur Causae, ob quas ecclesia nova in praejudicium alteri us etiam parochialis ecclesiee sediti- 
" cari potest ; prsecipue si ob nimiam distantiam, incolse loci ad priorem ecclesiam sine magna diffieul- 
" tate, prsesertim tempore hyemali, aut cum pluvise inundant, venire non possint; hoc enim in casu 
" novam ecclesiam parochialem sedificari, vel jam extantam pro parochiali deputari per episcopum 
" etiam invitis rectoribus antiquarum ecclesiarum, ac in eorum praejudicium posse, imo et debere, ex- 
" presse statuitur a concilio Tridentino, Sess. 21, de Reformatione, Cap. 4." Reirtenstuel, Jus Can. vol. 
5. p. 200. 

(9) Quid requiritur, ut ecclesia aliqua dici pai'ochialis possit ? 

1 Potestas ligandi, et solvendi in foro poenitentiali. 

2 Locus ceftis limitibus constitutus, in quo populus alicui ecclesise deputatus degit. 

3 Auctoritas episcopi designantis eidem limites, et constituentis populum paroehianura. Schmalz.- 
grueber, Jus Ecclesiasticum, vol. 6, page 645. Edit. Rome, 1844. 



29 

" can appoint a priest there who, in his own name and by virtue of his office, 
" shall have charge of those souls." (10). 
Bouix, furthermore, writes as follows : 

"Bishops, both as delegates of the Apostolic See and as Ordinaries of 
' Dioceses, possess the power of erecting new Parishes per viam dismembrationis. 
' . . . When Leurenius sometimes states that recourse was had to the 
' Pope, and that the erection made by the Bishop is confirmed by the 
' Pope, we must understand that such recourse or confirmation was not of 
' necessity, but was spontaneous and for surety, as Leurenius himself states. 
' . That Bishops ex jure ordinario have power of erecting Parishes 

' per viam dismembrationis is proven from the manner in which the Council of 
' Trent speaks. For whenever the word etiam is used in conferring any 
' power upon Bishops as delegates of the Apostolic See, it is a proof, (as Doctors 
' generally teach) that they also possess the same power ex jure ordinajrio" (11) 
Craisson writes : 

"As to Parishes, it is certain that Bishops can constitute them .... 
" per viam creationis, or, . . . out of a people or territory as yet ascribed to 
"no Parish, as is the case in pclrtibus infidelium." (12) 

Finally, Pope Pius VII. , in the Bull Ecclesia Christi, says : 
"When Dioceses are constituted it is very necessary that the limits of 
•" Parishes should be determined ; we wish this circumscription to be made by 
" the Bishops." (13) 

Hence, according to the Council of Trent and the general teaching of 
Canon Law : 

1st. Bishops ex postate ordinaria can create Canonical Parishes ; 
2ndly. They can erect Canonical Parishes per viam dismembrationis ex 
potestate turn ordinaria turn delegata ; 

3dly. The Council of Trent commands them to exercise this power as soon 
as possible. 

(10) Rarissime contingit in aliqua dicecesi reperiri territorii populive partem aliquam, quae alicui jam 
constitutae parochise non abscribatur. 

In regionibus infidelium, ad fidem catholicam noviter sabactis datur locus novarum diceceseon erec- 
tioni ; et in hojusmodi semel constitutis dicecesibus reperiuntur in parochias distribuendi populi, qui 
nulli adhuc parochise adscript! fuerant. 

Dubium non est ad ordinariam Epjscopi potestatem pertinere, earn dicecesis suseregiunculam plebemve 
quae nondum ulli parochise adscripta foret, in parochiam erigere ; id est ibi sacerdotem constituere, qui 
proprio nomine et ex officio illarum animaruni curam exerceat. Bouix, de Parocho, p. 245. 

(11) Episcopis, turn etiam quatenus a Sede Apostolica delegatis, turn etiam quatenus Ordinariis corn- 
petit potestas per viam dismembrationis novas erigendi parochias Dum autem dicit Leurenius quan- 

doque recurri ad Papam, et a Papa confirmari erectionem ab Episcopo factam, id intelligendum est, de 
recursu et coniirmatione non ex necessitate sed libere et ad cautelam adhibitis ; prout ipse Leurenius 
adnotat hi citato opere. Eadem potestas Episcopis etiam competit jure ordinario. Confirmatur ex modo 
loquendi Tridentinae Synodi. Quando enim aliquam potestatem Episcopis conferendo tanquam Sedis 
Apostolicse delegatis, addit vocem etiam, signuni est (prout communitur tradunt doctores) earn potesta- 
tem ordinario simul jure ipsis competere. Bouix, de Parocho, pp. 248-249. 

(12) Quoad parochias certum est illos posse ab Episcopis instituti .per viam creationis ex populo 

vel territorio nondum ulli parochise adscripto, sicut contingit in partibus infidelium. Craisson, Man. 
Juris Can. vol. I. pp. 173-174. Ed. Pict. 1875. 

(13) Constitutis dicecesibus, cum omnino necesse sit limites etiam parceciarum constitui, earum cir- 
cumscriptionem ab Episcopis fieri volumus. Bouix, de Parocho, p. 221. 



30 

Wherefore, Bishops in the United States, without any special authorization 
from Rome, have, 'ex potestate ordinaria, the power of erecting Canonical 
Parishes in their Dioceses, and they are commanded to do it quamprimum. 

There is a fact in the history of Parishes which confirms this teaching, 
namely: the erection of Canonical Parishes in Canada. The 30th of last 
November, Monsigneur Taschereau, the gracious Archbishop of Quebec, 
deigned to write in answer to my enquiries on this matter, that without any 
special authorization from Rome, and solely by the exercise of the ordinary 
jurisdiction of Bishops, all the Canonical Parishes in Canada were erected, 
excepting those in Montreal, where an appeal was made to the Holy See 
against the Bishop, and the creation of Parishes took place with a special 
Apostolic authority. (14) 

Hence, whenever in the judgment of our Bishops this change becomes op- 
portune, there will be no delay in making it, for our Bishops have the power, 
and are commanded to exercise it quamjprimum. 

It may not be much of a venture to go a step farther and say, whenever, in 
the discharge of their most solemn duties, the Bishops of a province, or even 
the Bishop of any Diocese, find it opportune to make the change, there will 
be no hesitation in effecting it on the ground that the power is lacking. But 
the question of power is not the only one to be considered. No Bishop, it 
will readily be conceded, would declare such change opportune in his Diocese, 
however well it might be prepared for Canonical Parishes, without having 
considered the momentous question of his relations with neighboring Dioceses 
and Provinces. Exercising this power in a single Diocese might be as annoying 
as declaring a single province a republic in a confederation of monarchies. 
As to changing our relations with Rome, it is to be supposed that the Holy 
Father would be informed, if for no other object than to ask his benediction. 
However, the question here is not the practical workings of the exercise of 
this power. Nor is it our province to decide when such change is opportune. 
This must be left to the most prudent judgment of the Holy See and of out- 
most worthy Hierarchy. Our question is the teaching regarding the subject 
of the power to change our missions into Canonical Parishes. 

In the passage quoted from Dr. Smith in the beginning of this article, he 
says: 

" Custom, it would seem, may authorize Bishops to make this change, even 
•' without leave from the Holy See. Thus, according to Bouix, the Bishops of 
" France, without being empowered to do so by the Holy See, sometimes change 
" Parishes whose pastors are movable into Parishes with irremovable pastors." 

(14) Aroheveche de Quebec, Quebkci, 25° Januarii, 1878. 

Revdo. D. P. F. Quigley, D. D., Cleveland. 

R.EVERENDE DOMINE : 

Juxta votum a te expressum in tua epistola 21 currentis, licet tibi publice declarare me dixisse omnes 
parochiasin hac Canadensi provincia erectas fuisse ex sola jurisdictione episcopi, sive erectio fiat ex ter- 
ritorio nullius, sive fiat per viam dismembrationis. 

Qusedani Marianopoli erectse sunt cum speciali auctoritate SanctoeSsedis, quia contra earum erectionem 
appellatio facta f uerat ad Sanctam Sedera. 

|E. A. Archpus. Qaebecen. 



31 

Let us examine this question a little. In the Concordat entered into in 
the year 1801, between Pope Pius VII. and Napoleon Bonaparte, provision 
was made for the erection only of Parishes with immovable Pastors. By the 
Concordat entered into the year 1827, between Pope Leo XII. and William 
I. of Belgium, the Concordat between Pope Pius VII. and France, was ex- 
tended to the northern province of Belgium — it had previously obtained in 
the southern provinces. (15) 

To the Concordat with France, Bonaparte, in the year 1802, added the Or- 
ganic Articles making regulations according to which there were to be Succur- 
sal Churches with movable Pastors. In articles 31, 61 and 63, we find the 
following : 

" There shall beat least one Canonical Parish for every district of Justice. 
" Moreover, there shall be established as many Succursal Churches as shall be 
"needed. 

" Each Bishop, conjointly with the prefect, shall regulate the number and 
"extent of those Succursal Churches. 

" The priests, serving the Succursal Churches shall be appointed by the 
' ' Bishops. • 

" The vicars and curates shall exercise their ministry under the guidance 
"and direction of the Pastors. They shall be approved by the Bishop and 
"shall be movable by him." (16) 

Now the Bishop of Liege proposed a doubt to the Holy See, as follows : 

"Most Holy Father: Are we, in consideration of the present circum- 
" stances of affairs, in places like Belgium, in which the required change of 
" the civil law cannot be effected, to hold as valid and binding in conscience, 
" until otherwise decided by the Holy See, that discipline which was in- 
" troduced after the Concordat of 1801, and according to which Bishops are 
" accustomed to confer jurisdiction, revocable at will, upon the Rectors of those 
" churches, which are called succursal, and are they, if recalled or sent else- 
" where, bound to obey ? " (17) 

In the Roman answer received from Cardinal Polidorius, Prefect of the 
Congregation of the Council, it was declared that His Holiness, Pope Gregory 
XVI. decided in favor of this discipline, May 1, 1845: 

" Our Most Holy Lord . . . graciously consented to have no change 
"made regarding the ruling of Succursal Churches, until otherwise decided by 
" the Holy See." (18) 

(15) Vide Do Luise, de JureDiplomatico, pp. 571-588. 

(16) II y aura aii inoins une paroisse par justice de pain. II sera en outre etabli autant de succur sales 
que le besoin pourra l'exiger. 

Chaque cveque de concert avec le prefet, reglera le nombre et l'etendue de ses succursales. 
Les pretres desservant les succursales sont nommes par les Eveques. 

Les vicairies et desservants exerceront leur ministere sous la surveillance et la direction des cures. Us 
seront approuvespar l'Eveque et re vocables par lui. 

(17) Beatissime Pater: An, attentis prsesentium rerum circumstantiis, in regionibus in qujbus, ut in 
Belgio, sufficiens legum civilium fieri non potuit immutatio, valeat et in conscientia obliget, usque ad 
aliam sanctse Sedis dispositionem, disci plina inducta post concordatum anni 1801, ex qua Episcopi 
rectoribus ecclesiarum qua? vocantur succursales j urisdictionem pro cura animarum conferre solent ad 
nutum revocabilem, et illi, si revocentur vel alio mittantur, tenentur obedire. Bouix, de Parocho, p. 224. 

(18) Ex audientia Sanctissimi, die 1 Maii, 1845, Sanctissimus Dominus Noster benigne annuit ut 

in regimine ecclesiarum succursalium, de quibus agitur, nulla immutatio fiat, donee aliter a Sancta 
Apostolica Sede statu turn fuerit. Bouix, de Parocho, pp. 223-224. Ed. Paris, 1867. 



32 

Moreover, Pope Pius IX, so gloriously reigning, declared, Oct. 5th, 1864, 
that this decision applied also to France. 

The Concordat provided for the appointment of only immovable Pastors. 
The Parishes had been erected with immovable Pastors ; subsequently the 
civil law designated the Pastors of Succursal Churches as movable ; Bishops 
assented to the civil law. In this state of affairs the Bishop of Liege asked 
could this discipline of moving the Pastors of Succursal Churches be enforced, 
and the Pope graciously assented. 

Observe, the Holy Father did not answer that " custom authorized 
" Bishops" to make such appointments and removals, that their discipline was 
legitimate; but in his answer used a formula — benigne amwit— which is usually 
brought into requisition in granting a faculty which one has not de jure. 
Wherefore, we must hold that introducing said discipline was illegal ; but it 
pleased His Holiness, by special concession, to make it thenceforth legal, the 
law of the Concordat to the contrary notwithstanding. (19) 

Dr. Smith refers to Bouix, p. 240, as proof that Bishops in France, without 
being empowered by the Holy See to do so, change Parishes whose Pastors 
are movable into Parishes with immovable Pastors. This is a singular blunder 
for in the place referred to, Bouix teaches the very contrary, for he distinctly 
states that Pope Gregory XVI. permitted, and even commanded, the continu- 
ance of the discipline introduced regarding Succursal Churches contrary to the 
prescription of the Concordat. 

Bouix furthermore shows that the discipline introduced consisted in : 

1st. Constituting the Rectors of Succursal Churches removable ad nutum 
episcopi : 

2ndly. After a certain arrangement with the government, changing the 
Succursal Churches, with movable Pastors, into Churches with immovable 
Pastors. 

Wherefore, Bouix shows that the Holy See has empowered the Bishops of 
France to "sometimes change Parishes whose Pastors are movable into 
Parishes with irremovable Pastors." (20) 

(19) Vide Bouix, de Parocho, pp. 223-236. 

(20) Gegorius XVI. liisce verbis, in regimine ecclesiarum succursalium nulla immutatio fiat, legitimam 
et continuandam decrevit induclam quoad succursalium regimen disciplhnam. Porro quemadmodum 
inducta fuerat disciplina et praxis ut rectores succursalium ad nutum removerentur, ita etiam usu et 
praxi iuductum fuerat, ut identidem episcopi succursales ecclesias erigerent ad conditionem earum quae 
initio sub titulo jparo isses constitutce sunt, dummodo gubernium in tituli mutationem, et in solvendam 
novo titulo correspondentem pensionem consentiret. Quo peracto ecclesia succursalis jam non reputabatur 
discipline revocabilitatis ad nutum subjecta, sed beneficiis perpetuis accensebatur. Hsec, inquam, ante 
Gregorium XVI. perpetuo viguerat praxis. Cum ergo praxis haec fuerit pars ilMus inductee post concor- 
datum quoad succursales disciplince, quam continuari Pontifex permittit, imo et praecepit, ex ipsius 
rescripto colligenda etiam venit hujusce praxeos legitimitas. 

Bouix, de Parocho, p. 240. Ed. Paris, 1867. 



rp 



THE LAW OX THE IMPRIMATUR 
FOR THE UNITED STATES. 



FIFTH ARTICLE. 



VI. On page 246 and 247 of the Elements, Rev. Dr. Smith writes: 

" Are books in the United States treating de rebus sacris to be submitted to the 
" ordinary before publication ? We reply in the affirmative as to bibles published 
"in the vernacular, catechisms, prayer-books, and class-books for colleges and 
" schools. As regards other books there are tiro opinions : one holds that the Second 
" Plenary Council of Baltimore enjoins that all books treating cte rebus sacris should 
" be submitted to the ordinaries before publication ; the other that the Fathers 
" of Baltimore merely counsel it. As a matter of fact, books on religion are not 
" unfrequently published without the approbation of ordinaries by authors whose 
"faith and piety are above all suspicion. This would seem to point to the 
" abeyance of the law, if, indeed, it was really enacted by the Council." 

Again, in the preface, page 5, speaking of this point, he says : 

" 'To cause the booh (The Elements) to be received with greater confidence, and to 
"make sure that it contained nothing contrary to faith, good morals, and the common 
" opinion of Canonists, we cheerfully submitted it to our ecclesiastical superiors. 
" Upon the report of the theologian appointed to examine the work the imprim- 
" atur which adorns the front page was graciously granted by his Eminence the 
"Cardinal Archbishop of New York." 

Here, Rev. Dr. Smith teaches that the obligation of obtaining the imprim- 
atur of the Ordinary, prior to publishing, in the United States, books treating 
of holy things, is a matter of opinion ; he gives authority for the opinion 
affirming the obligation ; he gives no authority for the opinion denying it, but 
says in a foot note : 

".This second op in ion rests merely on the argument that the Council (of Balti- 
" more) does not directly, but only, if at all, inferential!!/ enact the law in question. 
" The first opinion seems, therefore, sa/Vr." > 

There is no " opinion " whatsoever regarding the obligation of obtaining the 
imprimatur for works treating of holy things prior to publishing them in the 
United States. There is a clear, distinct, positive law imposing this obliga- 
tion ; also, there is an unmistakable prohibition against reading books treating 
of holy things when published without the imprimatur of the Ordinary. 
The Second Plenary Council of Baltimore advances this law, saying : 
"It is forbidden by the law of the Church to publish books concerning 
" Religion and divine worship, without the approbation of the Ordinary. If, 
"however, such books should be published without consulting the Bishop, 
" or against his will, one must abstain from reading them." (1) 

(1) lam vero ecclesise lege, libri ad Religioneni et Dei cultum spectantes sine Ordinarii approbationem 
prselo committi vetantur : quod si, Episeopo inconsulto aut invito, in lucem prodierint, eorura lectione 
abstincndum est. Con. Plen. II. Bait. No. G02, p. 254. 



34 

One might object that from the title of the chapter containing this passage, 
it would seem that the Fathers of Baltimore treat only of prayer-books — de 
libris inter proecandum adhibitis. But there are in Canon Law various 
principles, such as verba genercdia generaliter sunt intelligenda ; ratio legis est 
anima legis; scire leges, nonhoc est verba earum tenere, sed vim ac potestatem, etc., 
which show that the title of a statute, or the heading of a chapter is not, 
properly speaking, any part of the statute, and that the words of a statute are 
to be taken in their usual and natural signification. (2) 

If one question this law, on the ground that the heading of the chapter 
makes it obscure, we have only to appeal to the official interpretation. Canon 
Law teaches that interpretation ex parte causce efficientis, is authentic, doc- 
trinal, etc.; that an authentic interpretation has the force of law, and must neces- 
sarily be acquiesced in by all concerned. The old law axioms ejus est legem in- 
terpretari, cujus est condere; and unde jus prodiit, interpretatio quoque procedat, 
as well as the general teaching of Canonists, on interpretation, establish this 
beyond all question. (3) 

Now the Fathers of Baltimore have given us an authentic interpretation of 
the law in question, thereby settling the point. In the Second Plenary 
Council of Baltimore assembled, they say on this question, in their Pastoral 
Letter to the clergy and laity of their charge : 

"The Council of Trent requires that all books which treat of Religion 
" should be submitted before publication to the Ordinary of the Diocese in 
" which they are to be published, for the purpose of obtaining his sanction, 
" so as to assure the faithful that they contain nothing contrary to faith or 
" morals. This law is still of force ; and in the former Plenary Council 
" its observance was urged, and the Bishops were exhorted to approve of no 
" book which had not been previously examined by themselves, or by clergy- 
" men appointed by them for that purpose, and to confine such approbation 
' ' to works published in their respective Dioceses/' (4) 

This authoritative interpretation proves clearly that the Fathers of Balti- 
more, in the exercise of their legislative power, intended to enact, and actually 
did enact for this country a law obliging authors to submit books treating of 
holy things, for the episcopal imprimatur. The Tridentine law, to which ref- 
erence is made, reads : 

" As publishers, falsely thinking that it is allowed them to publish what- 
" soever they please, have, beyond all bounds, and without the permission of 
" their ecclesiastical superiors, published, at times from a secret press and at 
" times from a lying press, the books of the Sacred Scriptures, and all manner 
" of annotations and expositions of said books, and, what is worse, without the 

" name of the author, the most holy synod desiring to impose 

"limits upon publishers, declares and enacts that for the future, .... 

(2) Vide Keiffenstuel Jus Can. vol. I. pp. 1&3-195. Paris Ed. 1864. 

(3) Interpretatio authentica est ilia, cui necessario est aequiescendum, et qua? vim legis obtinet. 
Eeiffenstuel, Jus Can., vol. I. p. 180. 

(4) Acta et Decreta Con. Plen. II Bait., p. CXV. 



35 

" it shall be permitted to no one, under penalty of being anathematized, to 
"print or to cause to be printed, without the name of the author, any books 
"whatsoever treating of holy things, or to sell or retain such books 
"unless they shall have been previously examined and approved by tlie Or- 
"dinary." (5) 

It has been claimed that it is practically impossible to have books examined ; 
that the First Plenary Council of Baltimore treating this matter provided for 
the appointment by the Bishops of theologians for the purpose of examining 
books prior to publication ; that Bishops have not complied with this Decree, 
and that, therefore, the above law for authors is in abeyance. 

The Decree of the First Plenary Council of Baltimore, here referred to, is 
as follows : 

"We counsel ever^ Bishop to select in his Diocese one or more priests 
" thoroughly versed in theology, who may examine prayer books, or books 
" otherwise concerning Religion, before they shall be recommended to the 
"faithful by the approbation of the Ordinary or Vicar General." (6) 

Moreover, this counsel offered Bishops by the First Plenary Council of 
Baltimore was changed by the Second Plenary Council of Baltimore into a 
positive law obliging all Bishops in whose Dioceses there are Catholic pub- 
lishing houses. (7). 

But even granting that some Bishops have not complied with the 
law obliging them to appoint examiners, can this prove that authors are 
thereby exempt from the law obliging them to submit their works for the 
episcopal imprimatur prior to publication ? Is it not absurd to hold that be- 
cause a Bishop violates law ever} r body else may violate law ? Is it not worse 
than ludicrous to advance such absurdities as the teaching of Canon Law ? 
Why not submit one's manuscript, ask approbation, and then wait and see 
whether the required appointment will not be made, or whether it will be 
impossible to obtain the imprimatur ? 

It has also been held that the Rules of the Index are not binding in this 
country ; that the tenth Rule of the Index obliges authors to obtain the im- 
primatur, and that, therefore, in this country authors are exempt from the law 
on the imprimatur. 

(5) Sed et impressoribus modum in hac parte, ut par est imponere volens, qui jam sine modo, hoe est, 
putantes sibi licere, quidquid libet, sine licentia superiorum ecclesiasticorum, ipso sacrse seripturse 
libros, et super illis annotationes, et expositiones, quorumlibet indifferentes, ssepe tacito, seepe etiam 
ementito prselo, et quod gravius est, sine nomine auctoris imprimunt : alibi etiam impressos libros 
hujusmodi temere venales habent; diseernit, et statuit, ut posthac sacra scriptura, potissimum vero hsec 
ipsa vetus, et vulgata editio, quam emendatissime imprimatur : nullique liceat imprimere, vel imprimi 
facere quosvis libros de rebus sacrls sine nomine auctoris : neque illos infuturum vendere, aut etiam, apud se 
retinere,nisi primum examinati, probatique fuerint ab ordinario, sub pozna anathematis. Concil. Trident. 
Sess. IV. p. 8. Ed. Eomse, 1862. 

(6) Consulendum Episcopis, ut in suis quisque diocesibus unum aut plures sacerdotes scientla 
theologize insignes designent, qui examini subjiciant libros prsecum, aut aliter ad religionem pertinentes, 
priusquam ab Ordinario aut Vicario ejus generali approbatione fidelibus commendentur. Con. I. Plen. 
Bait. No. 85. Ed. 1853. 

(7) Quod decretum iterum conflrmamus, atque ita ampliamus ut omnes Episcopos obligandi vim 
habeat, in quorum dicecesibus sint prsela aut typographea Catholica Con. II. Plen. Bait. p. 255, No. 503. 



36 

It is true that the illustrious Archbishop Kenrick advances as an opinion 
that the Rules of the Index appear to be practically suspended in some 
countries. But it is also true that he tells of the commands of .the Sovereign 
Pontiffs, especially that of Clement VIII, enforcing those Rules everywhere; 
he also mentions the fact that in 1674 the Sacred Congregation of the 
Index declared that those Rules oblige all Christian.?. (8) Moreover, the 
most eminent Canonists hold that the Rules of the Index are of force 
everywhere. (9) Again, the fact that the church could and actually did 
make those Rules binding upon all, gives them the right of possession. Hence 
they are of force until legitimately suspended. A mere doubt or opinion 
against the binding force of* laws certainly and properly enacted and 
promulgated and not certainly abrogated, does not suspend them. The argu- 
ment that they are not accepted in certain places, does not suspend them, for 
the binding force of laws does not depend upon the consent, or acceptance of 
the subjects of the laws. But we waive all this, and yet, regardless of the 
binding force of the Rules of the Index, and of the Council of Trent, the 
law of Baltimore is of force, for it was lawfully enacted, specifically approved, 
and properly promulgated. Archbishop Kenrick lived, and wrote, ai d died 
long before the Second Plenary Council of Baltimore. In any case to set up 
the opinion of any individual against specific laws, properly enacted, approved, 
and promulgated, especially in face of the authoritative interpretation support- 
ing those laws, is clearly against Canon Law. Therefore, no teachings of any 
priVate doctor, interpreting any Canonist, can ever supercede the positive laws 
of Baltimore. 

Finally, as recently as the year 1869, in the Gonstitutio Apostolicae Sedis, 
Our Holy Father, Pius IX, renews the excommunication of the Council of 
Trent against all those : " Who print or cause to bd printed, without the appro- 
" bation of the Ordinary, books treating of holy things." (10) 

Wherefore, the necessit}^ of obtaining the episcopal imprimatur is not a 
matter of opinion. It is clearly a positive law binding upon authors in the 
United States publishing books treating of holy things. Not asking or ob- 
taining the imprimatur is a grave mistake, and a violation of the law, but 
does not abrogate the law. 

It seems queer that Rev. Dr. Smith, in his preface, ignores the obligation 
of complying with this law on the imprimatur, whilst on page 246 he admits the 
law is of force for " class-books for colleges," and states in the preface, that 
his work, together with another volume, to appear at an early day, " will form 
" a complete text-book of Canon Law." 

Our next article will close the critique on the Elements. 

(8) Theol. Mor. vol. II. p. 53. Ed. 1861. 

(9) Vide ReifFenstuel, Jus Can. vol G, p. 2-13 et seq. 
Craisson Manuale Juris Can. vol. I. p. 388 et seq. 

(10) Prceter bos hactenus recensitos, eos quoque quos sacrosanctum Concilium Trideutinum reservata 

Suninio Pontifiei aut Ordinariis absolulione , excommunicavit, Nos pariter ita excommunicatos 

esse declaranius excepta anathematis poena in deer. Sess. IV. de edit, et usu sacrorum librorum constituta, 
cui illos tatitum subjaeere voluraus, qui libros de rebus sacris tractantes, sine Ordinarii approbatione 
impviraunt aut impvimi faciunt. Gonstitutio Apostolicre Sedis. 



37 



REAL VALUE OF REV. DR. SMITH'S ELEMENTS. 



SIXTH AND LAST ARTICLE. 

VII. On page 5, in the Preface to his Elements, Rev. Dr. Smith writes: 

" The method observed in the present volume is that of Craisson in his celebrated 
" Manual? Totius Juris Canonici, a work which was approved at Rome and honored 
" with a congratulatory letter from the Holy Father." 

It is painful to feel called upon to charge an " author" with literary piracy ; 
yet it is only justice to Vicar General Craisson and to our English-speaking 
public, to announce that the Rev. Dr. Smith's Elements of Ecclesiastical Law 
are, for the most part, a mere translation from Craisson ! With friends I have 
compared the works page after page, selected here and there at random, one 
reading the original Latin of Craisson, and the other following in the Ele- 
ments of Rev. Dr. Smith. 

It is true that here and there Rev. Dr. Smith has made applications of the 
general teaching of Canon Law to the Church in the United States. But as 
I have shown in this series of articles, his applications are not always trust- 
worthy. It is also true that occasionally amongst the many Canonists quoted 
in foot-notes in the Elements, one finds mention of an author not quoted by 
Craisson, but this can scarcely entitle Rev. Dr. Smith to the authorship of the 
Elements. 



PASCHAL COMMUNION in the UNITED STATES. 

VIII. On page 386 of his Elements, Rev. Dr. Smith teaches : 

" In the United States the faithful can make their Paschal Communion almost 
" everywhere, We just said almost everywhere ; that is, except in certain 
" parishes of California. . . . The faithful . . . of these parishes must 
" receive their paschal Communion in their parish churches." 

In proof of this obligation to receive Paschal Communion in the Parish 
Churches, he adduces the sixteenth Decree of the First Provincial Council of 
San Francisco, as quoted by Father Konings. This obligation, however, 
exists not only for " certain parishes of California," but for the whole of the 
Province of San Francisco, which includes not only California, but also 
Nevada and all the territory east to the Colorado River. This is proved by 
No. 17, page 14, and No. 17, page 20 of the First Provincial Council of San 
Francisco, as also from the Roman approbation, pp. 32-36, ibidem. More- 
over, it is obligatory upon the faithful of the Diocese of Cleveland to receive 
their Paschal Communion in their Parish Church. This is shown by No. 1, 
of official circular No. II. , issued by the illustrious Lord Bishop of the Diocese 
on the Feast of St. Cecilia, 1876. 



38 

THE TRIDEXTIJSTE DECREE TAMETSI 
IN THE UNITED STATES. 



IX. On page 391 of the Elements we read : 

"It is certain that the Tridentine Decree Tametsi is not promulgated in most 
"of the Dioceses throughout this country (and nowhere with us does it bind 
" heretics sub pwna nullitatis, nor Catholics contracting with them); wherefore 
" marriages with us contracted by the sole consent of the parties, without the 
"presence of the pastor or anv other priest, or witnesses, are valid though 
" illicit." 

In a foot-note the author refers to the teaching that the Decree is not pro- 
mulgated "-m most of the Dioceses throughout this country/' by adding: 

" In some parts of the United States the Decree Tametsi is in force. Thus, it is 
" observed, 1st, in all the Dioceses belonging to the two provinces of New 
" Orleans and San Francisco ; 2d, in the Diocese of Vincennes ; 3d, in the follow- 
ing places of the Diocese of St. Louis: In the city of St. Louis, and in the 
" places called St. Genevieve, Florissant, and St. Charles : 4th, in the places 
" named Cahokia, Kaskaskia, and Prairie du Rocher, all three in the Diocese of 
" Alton. In the British possessions of Xorth America the Decree Tametsi is 
" observed : 1st, in the Province of Quebec — namely in the Dioceses of Quebec, 
" Montreal, Three Rivers, St. Hyacinth, St. Germain of Riinouski and Sherbrooke, 
" not, however, in the Diocese of Ottawa ; 2d, in the Province of St. Boniface." 

Those who are aware of the practical importance of this question, and of 
the difficulties it involves, can scarcely be satisfied with this manner of treat- 
ing it. It is not severity to say our times demand further treatment of this 
question in a work on Canon Law. The teaching as far as it relates to the 
Dioceses of St. Louis and Alton is incorrect. Moreover, the Decree Tametsi 
is of force in several Dioceses not mentioned by Dr. Smith. Reference to some 
Roman documents and other testimony may be found worthy of attention. 

The Decree Tamesti of the Council of Trent reads : 

"Although it is beyond a doubt that clandestine marriages entered into 
" with the free consent of the contracting parties, are valid, and real mar- 
'• riages, as long as the Church has not annulled them. . . . All those 
" who attempt to contract matrimony otherwise than when the Pastor is 
" present, or other Priest with permission from the Pastor or from the Bishop, 
" and when two or three witnesses are present, the Holy Synod renders utterly 
" incapable of so contracting marriage, and declares that all marriages so con- 
" tracted are null and void, and by this present decree makes them null and 
" void. The Synod furthermore declares that this decree shall be offeree in 
" each Parish thirty days after its first promulgation in the Parish."' (1) 

(1) Tametsi dubitandura non est clandestina matriinonia, libero contrahentium consensu facta, rata 

et vera esse matrimonia, quamdiu ecclesia ea irrita non fecit Qui aliter, quam prsesente paroeho, 

vel alio sacerdote, de ipsius paroehi, sen ordinarii licentia, et duobus vel tribus testibus matrimoniura 
contrahere attentabunt ; eos sancta synodus ad sic contrahendum omnino inhabiles reddit : et hujusmodi 

contractus irritos, et nullos esse decernit, prout eos prsesenti decreto irritos facit, et annullat. 

Decernit insuper, ut hujusmodi decretum in unaquaque parochia suum robnr post triginta dies habere 
incipiat a die prima? publicationis, in eadem parochia facta?, numerandos. 

Con. Trid. Sess. 24, de Matrini. Cap. I. 



39 

Before the Council of Trent, marriage contracted without any witness of the 
contract was valid. But the Council of Trent enacted a law making mar- 
riage null and void, unless when contracted in the presence of the Pastor and 
two witnesses. This law, however, has no force unless where validly pro- 
mulgated. It is admitted that the valid promulgation of this Decree 
can be made only by one possessed of supreme jurisdiction in joro 
externo, namely, by the Bishop, or his Superior. (2). Thus the pro- 
mulgation of this Decree made by missionaries in the Province of Ore- 
gon was declared null by the Holy See. (3) Moreover, even Bishops 
cannot ex potentate ordinaria validly promulgate this Decree outside of Canoni- 
cal Parishes. The following fact proves this : In the year 1840 the Bishop 
of Kingston, Canada, attempted to promulgate the Decree Tametsi in his 
diocese in which Canonical Parishes had not been erected, and for a time it 
was claimed that the Decree was of force. But the Bishops of the Province 
assembled in council at Quebec in the year 1852 expressed doubts as to the 
validity of the promulgation, as it had been made where no Canonical 
Parishes existed. They consulted Rome. The answer received from the 
Propaganda declared that the promulgation of this Decree outside Canonical 
Parishes can not be valid ; and ever since, in said Diocese of Kingston, the 
Decree Tametsi has been considered as not of force. (4) 

This teaching is also advanced by Cardinal de Lugo. Speaking of the 
obligation of the Decree Tametsi he says : 

"The obligation never commenced in places where there was no parish in 
" which to promulgate the Decree." (5) 

Again, the illustrious Feije teaches the same, saying : 

" We must hold that matrimony contracted without the Priest or witnesses 
'■' in a place where there is no Parish, is valid. ... In such places the 
" Decree is never to be published." (6) 

St. Alphonsus also advances this doctrine, saying that marriage celebrated 
without the Pastor is valid, " because there is no Parish there, or because the 
" promulgation of the Triden tine Decree, although once made, does not continue, 
" for when the Parish is abolished, the promulgation is also abolished." (7) 

Perrone holds the same teaching. Furthermore a Roman decision places 
this matter beyond dispute. The Bishop of Quebec, Mgr. Signay, proposed 



(2) Rollings Theol. Mor. vol 2, p. 2G6, No. 1606. c. Editio 3a. 

(3) Konings. vol. 2, p. 269. 

(4) Konings. vol 2, p. 270. Nota 2. 

(5) Non extante parochia, in qua publicatio fiat, nunquani incoepit obligatio. De Lugo Resp. Mor. L. 
I. Dub. 36, Tom. S. p. 59. Ed. Paris, 18G9. 

(6) In casu in quo parochialitatis ratio non existit, valid um dicendum est matrimonium sine 

saccrdote et testibus contraetum Adeo hoc verum esse opinamur, ut in ejusmodi loco ne publicatio 

quidcni ipsa (decreti) unquara sit facienda. Feije, De Imp. N. 335. 

(7) Quodsi non possit in aliquo oppido haberi pastor aut alius gerens ejus vices, tunc validum est 
matrimonium initum cum testibus sine parocho et probabile id putant Salmanticenses propter quamdam 
declarationem Clementis VIII., quia tunc vel non adest ibi parochia vel ibi non durat promulgatio 
Tridentini, quamvis facta fuerit, destructa enim parochia censetur destructa promulgatio quoad ejus 
valorem. Liguori, Opera Om. No. 1079, de Imped.Matri. vol.6, p. 747. Ed. Tur. 



40 

the following doubt to the Holy See: "Is the marriage of two Catholics 
"contracted by themselves alone, without any witness, valid?" To this the 
Sacred Congregation of the Inquisition responded, Nov. 17, 1835: "Such 
" marriage is valid for those subjects of the Diocese of Quebec, who are 
" under the charge of missionaries. For the Sacred Congregation of the 
" Propaganda in the year 1820 declared the Decree Tametsi of the Council of 
"Trent does not admit of publication for those inhabitants of the Diocese of 
" Quebec who are under the charge of missionaries only, as long as they are 
" under such charge. From these words it is evident that said inhabitants 
" can contract matrimony without the presence of the Pastor, or of any wit- 
" nesses. But we must hold the contrary of those inhabitants who reside in 
" places in which Parishes have been established ; for they are by no means 
" to be considered as exempt from the law of the Tridentine Decree." (8) This 
argument is found in Father Konings' Compendium of Moral Theology in 
the places quoted above. He also advances the argument that for the valid 
promulgation of the Decree Tametsi nothing which the law considers substan- 
tially necessary, ought to be wanting ; this law expressly requires the exis- 
tence of a Canonical Pastor and a Canonical Parish. Without these the law 
per se has no meaning, and can have no binding force. 

Hence the teachings of Canonists, as well as various Roman Decrees, 
establish that Bishops can not validly promulgate the Decree Tametsi of Trent 
unless in Canonical Parishes. As we have seen in a previous article, Bishops 
in the United States have power t<5 canonically erect Parishes. But only 
in places where they have exercised this power, and actually erected Canoni- 
cal Parishes, can they validly promulgate the Decree Tametsi. We have 
also seen, in another previous article, that in the United States there are no 
Canonical Parishes. Wherefore in the present ecclesiastical status no Bishop can 
ex potestate ordinaria validly promulgate the Decree Tametsi anywhere in the 
United States. 

Yet the Decree Tametsi has been validly promulgated, and is of force to- 
day, in the Provinces of San Francisco and New Orleans, as also in the 
Dioceses of St. Louis, St. Joseph, Vincennes, Alton, Peoria and Chicago. 

In the year 1861, the illustrious Archbishop of San Francisco, submitted 
the following doubts to the Sacred Congregation of the Holy office : 

" I. Must it be held that the Decree of the Council of Trent, chapter 1, 
"sess. 21, de Reformations matrimonii is to be considered as promulgated in all 
" parts of the Diocese of San Francisco? 

II. If not, must it be held that said Decree is to be considered as pro- 



a 



(8) Matrimoniuni duorum Oatholicorum inter se solos contract una absque ullo teste, validumne est ? 
Validum est pro lis Dicecesis Quebecencis incolis, qui missionariis utuntur. Sacra enim Congregatio de 
Propaganda Fide, anno 1820 decrevit: "pro incolis dicecesis Quebeeensis, qui missionariis tantum et 
donee utuntur, non esse locum decreto Concilii Tridentini Tametsi, nullo habito respectu majoris vel 
minoris distantise." Quibus ex verbis patet incolas praedictos matrimonia inire posse ncc Parocho 
adstante, nee testibus ullis. Secus vero de iis incolis affirmanduin est qui in locis habitant ubi sunt 
parochiae constitutae; illi enim nullo modo a lege Tridentini Decreti immunes haberi possunt. 



41 

" mulgated in churches lately established in places settled by Catholics only 
" during the last few years? 

" III. If not, must said Decree be considered as promulgated in the 
'• ancient Parishes ? " 

On the 15th of May, 1861, the most eminent Inquisitors-General responded 
as follows : 

"As to the first doubt the answer is affirmative; as to the second and 
" third, our answer is contained in our response to the first. " (9) 

These decisions were applied to the Diocese of Monterey and Los Angeles 
on the 5th of December, 1861, and on the first day of July, 1863, were 
applied to the Vicariate Apostolic of Marysville or to the Diocese of Grass 
Valley ; (10) in other words Rome has declared that the Decree Tametsi is 
of force hi all parts of the Province of San Francisco. 

Last December I submitted to his Grace Mgr. Alemany, the Archbishop 
of San Francisco, the reasons given above as against the validity of any pro- 
mulgation of the Decree made by Bishops. The Archbishop graciously 
favored me with the following reply : 

"San Francisco, January 14th, 1878. 
"Key. Dear Sir: 

" After receiving your esteemed favor of the 28th ulto. , I sent you a copy 
" oi our Provincial Council, which may be of some use to you, as it contains 
"decisions from the Holy See regard ing> the validity of marriages in Cali- 
" fornia, which, no doubt, affect all the territory formerly known as Upper 
" California and extending east as far as the Colorado River. The reasons you 
" give tending to show that the Decree Tametsi might not be in force in Cali- 
" fornia, were mainly the reasons that I presented to the Holy See before the 
' ' decisions ; but the Holy See considered the law of the Council of Trent 
" binding not only in the mission churches established by the old Spanish 
"Mexicans, but also in all other places which came into being since that 
" time ; and its main reason, I suppose, was that the decree had been pub- 
" lished in Guadalajara to which diocese our California belonged, and that 
" the Spanish and Mexican missionaries had always acted on the validity of 
" the decree. And yet the portion of Utah Territory lying on the south-east 
" of the Colorado River, although, it would seem to me, affected by the same 
"reasons, has been declared free from the Decree Tametsi by the same Sacred 
" Congregation on account of not having churches, and scarcely any Catho- 
" lies. Of course God having given us Rome for our guide its decisions are 

(9) "Quod spectat ad clandestinitatem matrimoniorum in California exaininata fuit 1861, a S. Con- 
gregatione S. Officii analoga Archiepiscopi Sancti Francisci relatio, quse cumdubiis sequentibus termina- 
bat-ur. 1; An decretum Concilii Tricl. Cap. 1. Sess. 21 de Ref. Matrimonii uti promulgatum haberi de- 
beat in omnibus locis dioecesis S. Francisci. 2; Si negative, an laudatum decretum uti promulgatum 
haberi debeat in p]eclesiis nuper fundatis in locis qui solum paucis abhinc annis Christi — fideles habere 
coeperunt. 3; Si negative ad 2. An laudatum decretum uti promulgatum haberi debeat in antiquis 
Ecctesiis." EE. Inquisitores generates fer. 4. Maji 15. 18G1 responderunt: "Ad I. dubium affirmative: 
ad 2, et 3. provisum in I." Acta at Decreta Concil Prov. S. Francisci I p. 66. 

(10) Acta et Decreta Con. Prov. S. Fr. I p. 67. 



42 

" always cheerfully received ......... 

" Hoping that the above may be found satisfactory, I remain, 

' ' Yours truly in Christo Fr. 

"tJ.S. Alemany, A. S. F." 
Rev. P. F. Quigley, D. D., etc. 

The decree of the Council of Trent, Tametsl, also is of force throughout the 
whole of the Province of New Orleans. In the year 1824, the Bishop 
of New Orleans submitted to the Holy See doubts as to whether the Decree 
Tametsi of Trent was of force in the Diocese of New Orleans, or Upper and 
Lower Louisiana, Florida, and all those districts formerly subject to the French 
and Spanish governments. Bishop Dubourg received in answer to his doubts 
a lengthy document from Rome, containing the following words : 

"All these things having been duly examined, in a general session of the 
" Sacred Congregation of the Holy Roman and Universal Inquisition, held on 
" Thursday, the 9th of September, in the year 1824, in the Vatican Place, 
" in presence of our Most Holy Lord, Pope Leo XII., his Holiness, having 
"heard the opinions of the Most Eminent and Most Reverend Cardinals, 
"Inquisitors-General .... command that the answer be forwarded in 
" the following instruction. And first, as to the publication of the Tridentine 
" decree. From decisions of the Sacred Congregations, as well as from decrees 
" of the Roman Pontiffs themselves, it must be held as certain that the provmlga- 
"tion of the decree of the Council of Trent must be presumed as of force in 
' ' those places in which it can be proved that said decree was at any time observed ; 
" moreover, that it was once observed in those regions can be easily 
" proved," (11) 

Then the document goes on to assign reasons which prove that the Decree 
Tametsi was at one time observed in the Diocese in question. 

It also appears from the same Instruction that Rome knew there were no 
Canonical Parishes in the Diocese of New Orleans, in fact Rome abolished 
the Parish of St. Louis, in the city of New Orleans, the. only Canonical Par- 
ish existing in the United States ; and in the Instruction uses the word 
missionarii, whereas the word parochi would have been used, had they been 
under the impression that there were Canonical Parishes there. 

This is the way the law is understood there, as I am assured by Very Rev. 
G.' Raymond, V. G. , writing to me on the part of his Grace the present 
Archbishop. 

The Tridentine Decree also obtains in the Diocese of St. Louis. This is 
proved by the following from the Diocesan Statutes : 

(11) Quibus omnibus relatis in Congregatione generali Sanctse Romanae et Universalis Inquisitionis 
habit a in Palatio Vaticano, Feria V. die 9° Septenibris, anno 1824, coram Sanctissimo Domino Leone 
Papa XII., Sanctitas Sua, auditis Emirum. et Revmorum. Cardiualium generalium Inquisitorum suf- 

fragiis respondendum jussit sequenti instructions. Ac 1° quoad Tridentini decreti pub- 

licationem: Jam pro firnio teneri debet turn ex Sacrarum Congregationum resolutionibus, turn ex eor- 
umdem Romanoruni Pontificum decretis, ibi prsesumendam earn esse ubi constat decretum lllud 
fuisse aliquo tempore, tanquaiu decretum Concilii obser vat am; porro observatum fuisse iis in regioni- 
bus facile ostendi potest, etc. Vide Appendicem. 



43 

"Let priests bear in mind, and take care to observe, what was recom- 
" mended in the first Council of Baltimore concerning the Sacrament of 
" Matrimony. Let them also remember what we signified to all the pastors 
" of the Diocese in our Encyclical Letters, whilst we discharged the duties of 
" Coadjutor Bishop of New Orleans, viz : 

" ' I. It was solemnly declared by Pope Leo XII, on the 9th day of Sep- 
" tember, 1824, that the discipline and decree of the Council of Trent con- 
" cerning clandestine marriages is in force in this Diocese, and the impedi- 
" ment of clandestinity exists here; and therefore marriages contracted 
" without the presence of the priest and two witnesses are null and void.'" (12) 

This law is also referred to in the Diocesan Synod of 1850, No. 17. (13) 

Again in his Pastoral Letter of Sept. 1st, 1850, Archbishop Ken rick 
teaches : 

" Now, brethren, we must remind you that agreeably to the law of the 
" Council of Trent, in force in this Diocese, every marriage in which both 
" parties are Catholic, to be valid, must be celebrated in the presence of the 
" priest of the parish where the parties reside, or should they reside in differ- 
" ent parishes, in the presence of the pastor of either parish. This is invari- 
" ably the case when there is a resident priest in any parish or district of this 
" Diocese, so that the neglect to observe this formality invalidates the mar- 
" riage." 

The territory now comprised in the Diocese of St. Joseph, was, in 1824, a 
part of the Diocese of New Orleans, wherefore the Decree Tametsi is of force 
also in the Diocese of St. Joseph. 

In the year 1840 Mgr. De La Hailandiere asked the Holy See to extend 
the law of Trent on clandestinity of marriages to the whole of the Dio- 
cese of Vincennes. On the 10th of January, 1841, Pope Gregory XIV. 
did extend the law to said Diocese, also extended the declaration of Pope 
Benedict XIV. regarding mixed marriages and marriages of non-Catholics 
in Holland and Belgium. (14) 

(12) Qua; de Sacram. Matrim. in I. Coneil. Bait, sacerdotibus commendata fuerunt, prse oculis 
habeant atque servare stu clean t. Meminerint etiam quae per litter as nostras encyclicas omnibus dioe 
cesis pastoribus signiiicavimus, dum officio Neo-Aurel. Epis. coadj uteris fungeremur, scilicet: 1° Solem- 
niter dcelaratum fuisse a Leone PP. XII. Fer. 5, 9 Sept. 1824, disciplinam et decretum Cone. Tri(L de 
Matrinioniis clandestinis in hac dioecesi vigere et impendimentum elandestinitatis subsistere; ideoque 
Matrimonia sine pra^esentia sacerdotis et duorum testium celebrata, nulla et irrita esse. Statuta Dio- 
ecesis S. Ludovici, promulgate ab Illmo ac Revmo D. Josepho Rosati. Apr. 1839. Decretum XIV. 

(13) Innovantes decretum 14, prima; svnodi S. Ludovici, mense April, in 1S39 habitse de matrim. 
sacram. sacerdotibus injungimus quse inibi habentur semper prse oculis haberi in administratione hujus 
Sacramenti, nisi in quantum, per prsesens hoc decretum aliter fuerit statutum, de proclamationibus 
mixtis etiam matrimoniis praemittendis. 

Statuta lata ab Illmo. Archiep. Kenrick, in Synodo Dioecesana, 25 Aug. — 1st Sep. 1850. 

(14) Beatissime Pater: Coelestinus de la Hailandiere, Episcopus Vincennensis Beatitudini Vestra 3 
humiliter exponet disciplinam Concilii Tridentini circa matrimonia inductam fuisse in civitatem Vin- 
cennensem et in pauca alia loca a G-allis qui prima ilia incoluerunt, et deinceps servatam fuisse ab eorum 
descendentibus in iisdem locis; seel quum processu temporis reliquae Dioecesis partes quae a Catholicis ex 
Statibus Unitis vel Hibernia et Anglia advenientibus inhabitatae fuerint, disciplina praedicta servata 
non semper fuit in no vis istis coloniis quae nunc majorem dioecesis partem constituunt. Episcopus 
arbitratur disciplinam Concilii Tridentini vigere quidem in civitate Vincennes aliisque antiquis Grallorum 



44 

The Decree is of force also in the Dioceses of Alton, Peoria and Chicago, 
for at the time that Rome declared the Decree binding throughout the whole 
Diocese of New Orleans, the present State of Illinois, containing said three 
Dioceses, was included in the Diocese of New 7 Orleans. In proof I offer the 
following letter graciously written me by the illustrious Bishop Ryan, Coad- 
jutor Bishop of St. Louis, in answer to my enquiries on this point: 

" St. Louis, Mo., June 22, 1878. 
' ' Rev. Dear Doctor : 

" In the year mentioned (1824) the Diocese of New Orleans comprised 
" Upper and Lower Louisiana — the former embracing with other territory the 
" present State of Illinois. . . . . . 

" Yours faithfully in Christ, 

"fP. J. Ryan, C. Bp." 
" Rev. P. F. Quigley, D. D." 

These documents unquestionably establish the existence of the Tridentine 
law on marriapre in the whole of the Provinces of San Fancisco and New 
Orleans, as also througout the whole of the Dioceses of St. Louis, (and not in 
certain parts only of this Diocese, as Rev. D. Smith, quoting Father Konings, 
writes), Vincennes, Alton, Peoria and Chicago. To sum up : 

I. Bishops cannot ex potentate ord'uiaria validly promulgate the Tridentine 
Decree Tametsi excepting in Canonical Parishes. 

II. Rome has declared this Decree of force in the Province of San Fran- 
cisco, as also in all the territory comprised in the Diocese of New Orleans in 
the year 1824. 

III. There is no contradiction between these two conclusions if we hold 
that the promulgation made in this country was of papal, not of episcopal 
power. 

According to my information at this writing the Province of San Francisco, 
in the year 1861, comprised the present States of California and Nevada, and 
all the territory east to the Rio Colorado ; and in the year 1824, the Diocese 
of New Orleans comprised the present Florida, Alabama, Mississippi, Louisi- 
ana, Texas, Arkansas, Missouri and Illinois. Wherefore the Decree Tametsi 

coloiriis, scd dubitat utrnm vigeat in novis American or urn, Hibernorum et Anglorum coloniis suae 
dioejesis; optarot autom unam eandeuique disciplinani in sua universa dioecesi sequi, ideoque a Beati- 
t inline Vestra petit ut patsat disciplinani eandem in tot a dioecesi Vincennensi sequendam esse atque 
benigne extendat ad dioecesim praedictam concessiones factas a Benedictio XIV. Belgio, et deinceps a 
Leone XII. dioeccsibus Neo Aurelianensi et S. Ludovi. Quare. 

Ex audentia Ssmi. habita die 10, Januarii 1841, Ssmus. Dominus Noster Gregorius, Divina Providentia 
PP. XVI. raferente me infrascripto Sacrae Congregationis de Propaganda Fide Secretario, mature per- 
pensis expositis, benigne annuit pro gratia juxta petita necnon exteudit ad totam dioecesem Vincen- 
nensem declarationem S. M. Benedicti, P. P. XIV., datam 4. Novr. 1741, super dubiis respicientibus 
matrimonia iu Hollandia et Bolgio contracta et contrahenda, contrariis quibuscumque non obstantibus. 

Datum Romae ex aed. die. Sac. Cong, die et anno quibus supra. 

Gratis sine alia omnino solutione, quocumque litulo. 
(Locus Sigilli.) J. ARCH. EDESSEN. 

Illmo. RRnio. 

COELESTINO LE LA HAILANDIEP.E. 
Episcopi Vincennensi 



45 

is of force in the Dioceses of San Francisco, Grass Valley, Los Angeles and 
Monterey, St. Augustine, Mobile, New Orleans, Galveston, San Antonio, 
Brownsville, Natchez, Natchitoches, Little Rock, St. Louis, St. Joseph, 
Alton, Peoria and Chicago, in all seventeen Dioceses. 

As to marriages contracted clandestinely in California prior to the year 
1861, the Holy See benignly granted the Ordinaries the power sanandi in 
radice. (15) 

Even when both parties contracting marriage are Catholic there is an ex- 
ception from the law of Trent ; namely, when in certain districts, owing to 
peculiar circumstances, it i^ impossible to secure the presence of the pastor. 
In the year 1793 Pope Pius VI. declared in his Epistle to the Bishop of 
Lucon that the Sacred Congregation of the Council had repeatedly so decided. 
According to a later decision of the Congregation of the Inquisition, as Bal- 
lerini shows, this exception exists when parties wishing to contract marriage 
would be obliged to wait for the space of a month before they could secure 
the attendance of their pastor, or another priest representing him. However, 
it is expressly specified that in such a case there be two witnesses of the mar- 
riage. (16) 

Again, the Holy See decided that this teaching applies to similar cases in 
California, providing the marriage be contracted in presence of two witnesses. 

(H) 

Diocesan statutes show that this declaration applies to the Diocese of St. 

Louis. (18) 

Father Konings shows that the Holy See also decided, in 1824, that slaves 
within the Diocese of New Orleans could validly marry in the absence of the 
pastor, providing one witness were present. (19) 

To prevent an attack from certain quarters it may be well, before closing, 
to refer to this law of Trent in as far as it relates to marriages of non-Catho- 
lics, as also to mixed marriages. 

The Catholic teaching is that the law of Trent, under discussion, does not 
affect the marriages of non-Catholics. Furthermore, the teaching is, this law 
does not affect the marriages of those who may have apostatized from the 
Catholic Church. Pope Pius VII. advances this teaching in his letters to 
Dr. Charles Dalberg, Archbishop of Meinz. (20) 

Pope Benedict XIV. writes that the Tridentine Decree does not invalidate 
the conjugal unions of non-Catholics who are not married by the priest, and 

(15) Con. Prov. >S. Francisci I. p. 60. 

(16) Ballerini Clary, vol. 2. de Matr. notes under No. 840. 

(17) Con. Prov. S. Francisci I. pp. 66, 67. 

(18) Declaratum fuisse a S. Pont. Matrimonia celebrata inter duas partes Catholicas sine prsesentia 
saccrdotis, in iis locis ubi sacerdos habitualiter residere non solet, etiamsi regulariter a missionario 
visitcntur, et etiamsi non longe distant a loco ubi sacerdos residet, valida esse, quamvis illicita forent si 
facile sacerdotem habere possent. Tres proclainationes matrimonii inter Catholicos sunt prsemit- 
tenda;. Quoad Matrimonia mixta meminerint sacerdotes proclamationes non esse faciendas. Stat. 
Di(Bccs. S. Ludovici promulgata ab Illmo. acEevrao. D. Jos. Rosati. Aprl. 1839.. 

(19) Compend. Theol. Moral, vol. 2, p. 269, not. 5. 

(20) Vide Ballerini (Jury. vol. 2. pp. 593, 594, 2d. Ed. 



46 

he observes that although he had filled divers positions in which he must 
have learned the law upon this matter, such as Secretary of the Congregation 
of the Interpreters of the Council of Trent, Consultor of the Supreme Inqui- 
sition, etc., he never found reason to show that the Decree Tametsi affects the 
marriages of non-Catholics. (21) 

Also Archbishop Kenrick teaches that the Tridentine Decree does not 
affect the marriages of non-Catholics. (22) 

But aside from this teaching of standard authors, Pope Benedict XIV, has 
officially declared that the Tridentine Decree did not affect either the mar- 
riages of non-Catholics, or mixed marriages in Holland and Belgium where 
the Decree Tametsi had been validly promulgated. This is not regarded as 
an exemption, or dispensation from the law, but merely as an authoritative de- 
claration as to what the law is in these cases. (23) 

The Provincial Council of San Francisco shows this declaration was applied 
to California in the year 1857. (24) 

The Instruction of Pope Leo XII. sent to Bishop Dubourg in 1824, 
shows that the same declaration applies to the Province of New Orleans. 

It is also certain that this declaration applies to the Diocese of St. Louis. (25) 

In brief, the declaration of Pope Benedict XIV. regarding marriagos in 
Holland and Belgium, applies to all places where the Decree Tametsi is of 
force. 

This series of articles has now drawn to a close. Though not free from 
defects, — for they were written during scraps of hours of recreation — they 
will probably serve to call attention to some of the errors and defects noticed 
in Rev. Dr. Smith's Elements of Ecclesiastical Law. 

(21) Nos quidem cum plurium annorum spatio, antequam ad majores dignitates ascenderemus 
muuera turn secretarii Congregationis Concilii Tridentini Interpretum, turn Doctoris in Decretis in 
Poenitentiarise Apostolic* officio, turn etiam Obnsultoris Supremie Inquisitionis exercuimus; sed 
nunquam opinioni illi acquiescere potuimus per quam prsedicta (Haereticorum) matrimonia nulla 
judicantiir. Bened. XIV. de Synd. Lib. 6. Cap. 6. No. 4. Ballerini Gury. vol. 1, de Matrim. pp. 593, 
595. 2d. Ed. 

(22) Kenrick, Theol. Mor. vol. 2, p. 329. Ed. Mechl. 1861, 

(23) Vide Instructionem Benedict! XIV. apud Acta et Decreta. Con. Pien. Bait. II. p. 314 

(24) Acta et decreta, Con. Prov. S. Francisci, pp. 67-68. 

(25) Ab Eodem Leone XII. extensum fuisse ad totam, qua longe patebat (anno 1824) Neo-Aurel. 
diocesim nimlrum ad superiorem et inferioreni Louisianam, ac ad Floridas caeterasque partes, olini 
Gallorum vel Hispanorum ditioni subjectas, declarationem et concessioner Benedicti XIV. circa matrim. 
pro Hollandia et Belgio. Ex praefatse declarationis et concessionis Bened. XIV. extensione ad nostram 
dioecesim sequi, Matrim. mixta, inter partem acatholicam baptizatam et catholicam celebrata, sine 
praesentiasacerdotis, etiam in locis ubi habetur copia sacerdotis, et sacerdos residere solet, valida esse, 
licet illicita; item Matrim. inter duas partes acatliolicas in iisdem locis, ubi habetur copia sacordotis, atque 
in aliis quibuscumque celebrata, valida esse, ita ut si ad fidem convertantur, vel ad bonam frugem 
revertantur, Matrim. praedicta non egeant rehabilitatione. Stat. Dioec. S. Ludovici. Promulgata ab Illmo. 
ac Revmo. Jos. Rosati, Mense Apr. 1839. 



47 



APPEN DIX. 



DECRETUM 

(De Matrimoniis Clanclestinis) 
FERIA V. 9. SEPTEMBRIS 1824. 



In Congregatione Generali S. Romanae et Universalis Inquisitionis habita 
in Palatio Vaticano coram SSmo Dno Nro Leone Divina Procidentia Papa 
XII. ac Emis et Rmis Dnis Cardinalibus Generalibus Inquisitoribus a S. Sede 
specialiter deputatis, 

Relatae fuerunt Literae Episcopi Novae Aureliae ad S. Congnem de Prop- 
aganda Fide, datae sub die 4, Aprilis 1822, quibus exponit in Neo-Aureli- 
ana Provincia, perinde ac in caeteris Provinciis Foederate Americae, quotidie 
juxta civiles illarum Regionum leges, a judicibus, vel ab Acatholicis Minis- 
tris celebrari Matrimonia, inter quae non raro etiam mixta, seu Catholicos 
inter et Acatholicos, se^ue propterea gravissimis continuo vexari angustiis ob 
hujusmodi Matrimoniorum Clandestinitatem, ac legum jussa, ignorans quid 
consilii capiendum sit, cum unus tan turn ex contrahentibus in se reversus, ac 
facti vel erroris poenitens, petit Eeclesiae reconciliari, vel ad Catholicam con- 
vertitur Fidem, renuente altero se subjicere Canonicis prescriptionibus exe- 
quendis. Quapropter ut a dubiis et anxietatibus circa Matrimonia praefata, 
nee non circa modum se gerendi cum Conjuge resipiscente aut converso, 
quantum fieri potest, et se liberet et Missionarios ; enixe rogat, ut in tota 
qua longe patet Neo-Aurelianensi Dioecesi (nimirum in Superiori, ac In- 
feriori Lovisiana, ac in Floridis, caeterisque parti bus olim Gallorum vel 
Hispanorum ditioni Subjectis) Sanctitas Sua declarare, atque statuere digne- 
tur relate ad Matrimonia hujusmodi quod pro Hollandia et Foederato Belgio 
declaravit ac statuit Benedictus XIV. 

SSmus itaque Dims Noster Leo XII. re mature perpensa libratisque 
illarum Regionum circumstantiis, et auditis Emorum et Rmorum Cardinali- 
um Generalium Inquisitorum Suffragiis, Episcopi Oratoris votis et precibus 
annuens, presenti Decreto extendit ad totam, ut supra, Neo-Aurelianensem 
Diocesim Declarationem, a S. M. Bened. XIV. datamdie4. Novembris 1741. 
super dubiis respicientibus Matrimonia in Hollandia et Belgio contracta, et 
contrahenda. 



48 
I N STR UCTIO. 

Exposuerat S. Congregationi de Propaganda Fide in suis literis 4. Aprilis 
1822, Episcopus Novae Aureliae in Foederata America : 

1 ° . Antiquiores illarum Missionura Sacsnlotes, a se consultos, in ea esse 
opinione quod Concilium Tridentinum numquam fuerit illic solemnitei- publi- 
catum. 

2°. E contra, ejus in Episcopatu Praedecessorem, in suis Instructioni- 
bus in quodam manuscripto Codice contentis, licet non declaret, pro facto 
tamen supponere, tempore Gallicae vel Hispanae dominationis, promulgatum 
fuisse Concilii Deeretum. Hinc : 

3°. Se plane nescire, quid agendum, cum in suae Dioecesos regionibus 
frequenter contingat, quin ob civiles quae ibi obtinent leges iiupediri id 
possit, a Judicibus vel Pseudoministris celebrari matrimonia mixta, et ali- 
quoties etiam inter Catholicos, idque non solum ubi deest copia Sacerdotis, 
sed etiam ubi adest Parochus. Atque idcirco :— 

4° . Si invalida declarentur ob clandestinitatem Matrimonia hujusmodi, 
gravissima inde in tota Neo-Aurelianensi Diocesi oritura inconimoda, lurba- 
tiones, et anxietates turn Catholicorum Fidelium, turn Episcopi, et Mission- 
ariorum, obveniente scilicet casu, quod alterutra tantum ex eontrahentibus 
pars ad bonam frugem, vel ad fidem revertatur, perse verante altera in sua 
pervicaeia, ac civilibus legibus freta, tarn separationi obsistente, quam novi 
ad Tridentini formam Matrimonii celebrationi. 

5 ° . Hisce autem incommodis avertendis, spiritualique tot Conjugum 
saluti consulendi nullum aliud sibi videri suppetere medium, nisi quod 
auctoritate Pontificia in ea Dioecesi dispensetur super Tridentino Clandestini- 
tatis impedimento. 

Quapropter enixe postulabat, ut pro Matromoniis, quae in illis Regionibus 
contrabuntur, Summus Pontifex statueret ac declararet quod statuerunt 
ac declararunt Bened. XIV. pro Hollandia et Belgio, Pius autem VI. et 
Pius VII. pro Gallia tempore schismatis. En ejus verba: " Certe pub- 
" licatum fuerat Concilium in Hollandia tempore Hispanicae Dominationis: 
"cum vero in manus hereticorum transiit suprema auctoritas, sapientissimus 
" Pontifex Benidictus XIV. illi benigne derogandum in hac parte duxit. 
" Idem judicavere S. M. Pius VI. et Pius VII. pro matrimoniis in Gallia, 
" scliismatis tempore contractis." Quidni speraremus eadem lenitate nobis- 
cum usuram Ecclesiam, cum eadem rationum momenta in gratiam hujus 
regionis militent ? 

Quibus omnibus relatis in Congne Gnli S. Romanae et Universalis Inquisi- 
tionis habita in Palatio Vaticano Feria V. die 9 Septembris 1824. coram 
SSmo Dno Nro Leone Divina Providentia Papa XII. , Sanctitas Sua, auditis 
Emorum et Rmorum Cardinalium Gnlium Inquisitorum sunragiis, extenden- 
dam censuit, prout ex hie adjunctb Extensionis Decreto ad totam Neo- 
Aurelianensem Dioecesim Declarationem Benedicti XIV. pro Matrimoniis in 



49 

Hollandia et Belgio ; quoad cetera vero in eisdem Episcopi Uteris contenta, 
respondendum jussit sequenti Instructione. 

Ac primo, quoad Tridentini Decreti publicationem : Jam pro firmo teneri 
debet, turn ex Sacrarum Congnum resolutionibus, turn ex eorumdem Roman- 
orum Pontificum Decretis, ibi presumendam earn esse, ubi constat Decretum 
illud fuisse aliquo tempore tamquam decretum Concilii observatum. Porro 
observatum aliquaudo fuisse iis in regionibus, cum Gallorum vel Hispanorum 
subdebantur imperio, facile ostendi posset. Et quidem relate ad Hispanos : 
Adeo exploratum est, quanto Religionis studio Hispanorum Reges, Concilio 
et Apostolicae Sedi obsequentes, in ejusdem Concilii publicationem in omnibus 
eorum ditionibus faciendam incubuerint, ac quanta pariter sedulitate Concili- 
aria Decreta observari curarint Hispanarum ditionum antistites, ut nee vel 
minimum dubitari queat de ejusdem decreti in Hispanicis Americanis regionibus 
observantia. Neque pariter locus est de hoc dubitandi relate ad Provincias 
quae Gallorum dominio subjiciebantur. Constat enim, Galliarum Regibus 
adeo cordi fuisse clandestina submovere matrimonia, ut Ecclesiasticae legi 
subsidio venientes, observantiam Conciliaris decreti non solum regiis etiam 
Edictis indixerint, sed et inter leges recensuerint omnino servandas ubicumque 
eorum extendebatur imperium. Atque quoad Colonias : Quum ageretur anno 
1764. sub Clemen te XIII. de extendenda ad regiones Canadensem et Que- 
beccensem memorata Benedicti XIV. declaratione, monumentis in causa alla- 
tis demonstratum fuit, Tridentinum Clandestinitatis impedimentum illis in 
Coloniis tunc viguisse non secus ac in Gallia, ex quo inferendum, et in aliis 
quoque vigere quae partem nunc constituunt Neo-Aurelianensis Dioecesis. 
Accedit et defuncti Episcopi testimonium, qui, ut refert Orator, in suis 
Instructionibus pro facto supponit promulgatum ibi fuisse Tridentinum Decre- 
tum. Nee interest, quod non expresse id declaraverit : Supervacaneum 
namque duxit declarare, quod pro certo ac notorio tenebat. 

Non valent autem neque Missionariorum, quos consuluit Episcopus, asser- 
tiones de non peracta solemni publicatione Concilii, neque execrandus ineun- 
dorum Matrimoniorum coram Judicibus vel hereticis Ministris abusus, ut inde 
inferri possit, non subsistere impedimentum Clandestinitatis. Ex eo enim, 
quod praefati Missionarii opinentur non fuisse solemniter publicatum Decre- 
tum, de quo agitur, non consequitur, eos inficiari, ipsum fuisse aliquo tempore 
observatum ; ex observantia autem, ut supra monitum est, praesumitur pub- 
licatio. Caeterum pluris facienda est laudati defuncti Episcopi, quam dicto- 
rum Missionariorum auctoritas. Abusus vero contrahendi coram judicibus 
vel Pseudoministris, haudquaquam probat, legem non existere, vel non 
obligare ; sed probat tantum, quod maxime dolendum est, tarn perditos 
inveniri Catholicos, qui sacrilego ausu divinas aeque ac ecclesiasticas leges 
palam conculcare non erubescant. 

Hinc apparet, quid de hujusmodi Matrimoniis sentiendum sit. Absurda 
autem, et mali exempli, foret generalis, quam exoptare videtur Episcopus, 
dispensatio super Clandestinitatis impedimento, extensive etiam ad Catholico- 



50 

rum Matrimonia. ISTeque ille gravate ferat earn ab Apostolica Sede dene- 
gari. Jam enim quoad Matrimonia Haereticorum inter se, vel cum Catho- 
licis, seu mixta, quae praecipua sunt anxietatum ejus causa, ipse Episcopus et 
Missionarii ab omnibus extricantur et liberantur angustiis per extensionem 
Benedictinae Declarationis. Quoad vero Matrimonia Catholicorum, id est, 
inter utramque partem Catholicam, latere non debet Episcopum, denegatam 
fuisse dispensationem etiam Canadensibus et Quebeccensibus, licet ratione 
turn locorum, turn legum, turn religionis Dominantium, in similibus ac Neo- 
Aurelianenses, versarentur cireumstantiis. Siquidem Feria V. die 29. 
Novembris 1764. proposito dubio: "An praesem illarum Regionnm (Cana- 
densis scilicet ac Quebeccensis) conditio exigere videatur, ut S. Sed.es generaliter 
dispenset ab observantia format inductae a Concilio TridentinoT Responsum 
prodiit " Negative." 

Neque pro Catholicorum Matrimoniis ad rem faciunt laudatorum Pontifi- 
cum declarationes, ac decreta pro Hollandia et Gallia. Ipse namque Bened. 
XIV. expresse declarat (de Syn. Dioec. lib. 6. cap. 6. § 13.) ea non compre- 
hendi in suo pro Foederati Belgii Provinciis decreto. " Matrimonia, inquit, 
"Catholicorum in decreto non comprehensa facile intelliget quicumque 
" advertat, illud nominatim restrictum esse ad ea Matrimonia, quae in pracfatis 
" regionibus vel inter duos contrahentes haereticos, vel inter unam partem 
" Catholicam, et alteram hereticam, contrahuntur." Reliqui autem duo Ponti- 
fices Pius VI. et Pius VII. haudquaquam pro Gallia derogarunt in hac parte 
Tridentino Concilio, sed tantum, et Episcopis concessere ad tempus facul- 
tatem dispensandi super Tridentini forma in Matrimoniis mixtis, et quoad 
Catholicos, declararunt casus, in quibus ex Ecclesiae mente cessare intelligi- 
tur ejusdem servandae formae obligatio, nempe tempore persecutions, absente, 
vel latente legitimo Parocho, vel si difficile admodum foret ac periculosum 
ipsum adire ; " Quoniam" inquit Pius VI. in Instructione ad Episcopum 
Lucionensem data die 28. Maii 1792., " campliires ex istis Fidelibus nan possunt 
' ' omnino Parochum legitimum habere, istorwn prqfecto conjtigia coram testibns, et 
" sine Parochi praesentia, si nihil aliud obdet, et valida, et licita erwit, ut saepe 
' ' saepius declaratum fait a S. Congregatione Qmcilii Tridentini interprets." Quas 
Ecclesiastici Juris dispositions nee ipse ignorat Episcopus. Scribit enim 
" Si id eveniret (quod scilicet contrahant Catholic! vel inter se, vel cum 
" Acatholicis coram Judicibus, aut haereticis ministris) solummodo in Us locis, 
" vbi deest cojna Sacerdotis, faeiUvs ex nota mente Ecclesia£ solveretur difficultas : 
"sed frequenter etiam locum habet in m, ubi adest Parochm." Hie itaque est 
casus, qui eum urget et vexat : sed casus, ad quern non extend untur praefatae 
declarationes. 

Verum, et quoad hujusmodi Catholicorum matrimonia hactenus contracta, 
providere volens summus Pontifex spirituali contrahentium saluti, una et 
Episcopum et Missionaries a sollicitudine qua fortasse afficiuntur, eximere, 
dummodo nullum aliud, praeter Clandestinitatis, obstet impedimentum, ea in 
radice sananda esse decrevit, atque Apostolica auctoritate sanat; quin opus sit 



51 

Conjuges ad novi consensus praestationem admittere, tribuens propterea Epis- 
copo facultates in casu opportunas, et necessarias. Ad praecavenda autem 
jurgia, quae oriri hinc possent, ac ne alterutri, vel etiam utrique Conjugi ansa 
praebeatur attentandi Oonjugii dissolutionem, curet Episcopus, ne iis Conju- 
gibus denuntietur initi matrimonii invaliditas, antequam ad eorum notitiam 
pariter deducatur, et sanatio. Exquirat itaque secreto, prout fieri potest, 
accuratam horum Matrimoniorum notulam, et conjugum nomina, omniaque 
diligenter descripta cum adnotatione Pontificiae sanationis caute custodiantur, 
quemadmodum pro matrimoniis occultis, seu conscientiae praescribit Bened. 
XIV, in sua Constitutione " Satis vobis" (die 27. Novembris 1741.) 

Postulabat denique idem Episcopus edoceri se, et Missionaries, quomodo, 
posita hujusmodi matrimoniorum invaliditate, se gerere debeant: " Erga eos 
" qui post civile matrimonii mi jam consummatum, adhuc vivente Coiworte, novum 
" cum alio conjugium coram Nobis' (inquit) mire poscerent." En autem 
rationes, quae eum aneipitem tenent: "Si id fiat (prosequitur) sine civili 
*' repudio, Sacerdos se gravissimae poenae subjicit. Si requirat praevium repudium, 
" dato quod, obtineri possit,, morem ilium Antichristianum auctoritate sua, aut poiius 
* ' Ecclesiaie sanctione consecrat. Verwn aliunde quo jure potest' huic se petitioni 
" negare, si r ever a prius Matrimonium nullum sit? Tunc enim ambae partes 
(i vere solutae surd, et, utpote catholicae, jus habent ad sacramenti receptionem." 

Ad haec breviter respondetur. Si de matrimoniis Catholicorum hactenus 
contracts fit sermo, jam provisum per eorum sanationem, nee conjuges am- 
plius resilire possunt, nee proinde ad novas cum aliis nuptias transire. Si 
vero sermo est de eontrahendis : Confidit equidem Sanctitas Sua, futurum, ut 
in posterum Fideles, ab Episcopo et Missionariis edocti, juxta ea quae tradit 
Bened. XIV. in suis Uteris "Redditae sunt nobis" ad P. Paulum Simonem a 
S. Joseph datis 27. Septembris 1746., nullum scilicet a se contrahi matri- 
monium p«r eum, quern coram Magistratum civilem actum emittunt, ideoque 
conjugalem, quam interim inter se haberent, consuetudinem gravi culpa non 
carituram, ea qua debent docilitate obtemperaturi sint Ecclesiae legibus, ac 
Pastorum exhortation ibus. Verum si tamen casus contingeret conjugalis con- 
suetudinis post memoratum actum civilem, ante Matrimonii coram sacerdote 
celebrationem, sciat Episcopus, non in sola ejus Dioecesi id e venire, sed 
ubicumque viget lex contractus civilis; quia nullibi desunt, qui vel ignorantia, 
vel pravitate ea lege abutantur. In eodem ergo discrimine ac ipse, versari 
possunt et aliarum region um Pastores. 

Primo itaque curent Episcopus et Missionarii utramque partem inducere ad 
Catholice inter se contrahendum. Si vero utraque pars in hoc convenit, ut 
suam quaeque sibi vindicet libertatem, vel etiam, si una tantum id expos- 
ceret, renuente altera., indicenda est eis separatio, et neutra admitti debet ad 
sacramenta, nisi separatione peracta, ut praescribitur de publicis Concubi- 
nariis. Poscenti autem novum cum alio inire matrimonium suggerere, quod 
et sibi prius consulat, et ipsi Parocho, agendo scilicet ut et sibi civilis reddatur 
libertas, et Parocho nihil sit inde mali obventurum ; non id esset civilis 



52 

repudii morem approbare, dummodo rite instruatur postulans, id non ideo 
fieri, ut solvatur matrimoniale vinculum, quia nullo jam vinculo detinetur, sed 
tantum ut se ac Parochum a legalibus poenis, civilibusque vexationibus 
redimat. Eodem sensu, ac modo, quo toleratur primus actus civilis, expressio 
nempe consensus coram civili Magistratu, tolerari potest et secundus, ut 
nimirum se partes eximant ab effectibus primi. Hisce vero penes Guber- 
nium peragendis non se immiscere debent Missionarii. Qui nubere exposcit, 
ipse negotium suum agat. 

Caeterum quod idem Bened. XIV. in laudatis Uteris docendos monet 
Fideles, sibi opportune aptent et Pastores, scilicet "Si regionis consuetudini, 
' ' et terreni Principis sanctionibus obtemperare coguntur, faciant quidem, sed 
" Religione salva, potioresque ducant sanctissimas Ecclesiae leges, quibus matri- 
"monia constringuntur." 

Nicolaus Soldini S. Romae et Unlis Inqnis Nots. 
IMPRIMATUR 
Neo-Aurelle, die 24a Aprilis 1878. 

f NAPOLEO JOSEPHUS, Archiepiscopus Neo-Aurelianetisis. 



DO 



INDEX, 



Preface, pp. 3-4. 

ARTICLE I. 

Confirmation of the Second Plenary Council of Baltimore, pp. 9-16. 

ARTICLE II. 

Removal of Pastors in the United States; 
Canonical Parishes in the United States, pp. 17-19. 

ARTICLE III. 

Dismissal of Pastors in the United States, and Suspension ex Informata 
Conscientia, pp. 21-24. 

ARTICLE IV. 

Erection of Canonical Parishes in the United States, pp. 25-32. 

ARTICLE V. 

The Law of the Imprimatur for the United States, pp. 33-36. 

ARTICLE VI. 

Real Value of Rev. Dr. Smith's Elements; p. 37. 
Pascal Communion in the United States; p. 37. 
The Tridentine Decree Tametsi in the United States, pp. 38-46. 

APPENDIX. 

The Roman Decree de Matrimoniis Clandestinis sent to New Orleans in the 
year 1824, pp. 47-52. 

Index Rerum, p. 55, 



INDEX RERUM. 



Administrators, p. 22. 

Alton Diocese subject to the Decree Tametsi, pp. 44-45. 

Appeals against Baltimore Council, pp. 10-16. 

Alabama subject to the Decree Tametsi, p. 44. 

Arkansas subject to the 'Decree Tametsi p. 44. 

Appointments to Parishes, p. 24. 

Brownsville Diocese subject to the Decree Tametsi, p. 45. 

Canada, how Canonical Parishes were erected there, p. 30. 

California subject to the Decree Tametsi, pp. 40-44. 

Chicago Diocese subject to the Decree Tametsi, pp. 44-45. 

Clandestinity, Tridentine Decree Tametsi published in seventeen Dioceses in 

' ' the United States, p. 44-45. 

Confirmation of Decrees of Second Plenary Council of Baltimore, pp. 10-16. 
Dismissal of Pastors in the United States, pp. 20 et seq. 
Ex Informata Conscientia action of Bishops in the United States, pp. 20 et seq. 
Florida subject to the Decree Tametsi, p. 44. 
Grass Valley Diocese subject to the Decree Tametsi, pp. 40-45. 
Galveston Diocese subject to the Decree Tametsi, pp. 44-45. 
Illinois subject to the Decree Tametsi, p. 44. 
Imprimatur obligatory in the United States, pp. 33 et seq. 
Index, Rules of in the United States, pp. 35-36. 
Little Rock Diocese subject to the Decree Tametsi, p. 45. 
Los Angeles and Montery Diocese subject to the Decree Tametsi pp. 40-45. 
Louisiana " " " " " p. 44. 

Mobile Diocese " " " " " p. 45. 

Mississippi " " " " " p. 44. 

Natches Diocese " " " " " p. 45. 

Natchitoches Diocese " " " " " p. 45. 

Nevada " " " " " pp. 40-44. 

New Orleans Diocese " " " " " pp. 42-45. 

Parishes, Canonical, none now in the United States, pp. 18-19. 

" " power to erect them inU. S. vested in the Bishop, p. 25 etseq. 

Parish Priests not essentially immovable, p. 25. 

Paschal Communion to be made in one's own church in the Province of San 
Francisco and in the Diocese of Cleveland, p. 37. 

Pastors, when transferable in the United States even against their will and 
without any canonical trial, pp. 21-24. 

Peoria Diocese subject to the Decree Tametsi, p. 45. 

Removability of Pastors in the United States, pp. 21-24. 

Roman Decree de Matrimoniis Clandestinis sent to New Orleans in the year 
1824, and now published for the first time, pp. 47-52. 

San Antonio Diocese subject to the Decree Tametsi, p. 45. • 

San Francisco " " " '• " " pp. 40-45. 

Suspension ex Informata Conscientia, pp. 20 et seq. 

St. Augustine Diocese subject to the Decree Tametsi, p. 45. 

St. Louis Diocese subject to the Decree Tametsi, pp. 42-45. 

St. Joseph Diocese subject to the Decree Tametsi, pp. 43-45. 

Tametsi, Tridentine Decree where it obliges in the United States, 38-46. 

Texas subject to the Decree Tametsi, p. 44. 

Value of Rev. Dr. Smith's Elements, p. 37. 

Vicars Capitular & Vicars General and Suspension ex Informata Conscientia, p. 22. 



SUPPLEMENT. 

The following, concerning " Points in Canon Law," is taken from the American Catholic 

Quarterly Review of October, 1878. 



' 'This, as indicated on the title-page, is a revised edition of some articles which 
appeared originally in the Cleveland Catholic Universe. The Rev. Dr. Quigley 
has studied carefully the matter of which he treats, and writes forcibly and con- 
vincingly. We think he has succeeded in proving all the chief points that Dr. 
Smith's book has given him occasion to discuss. In some few places, however, a 
somewhat milder tone would not have interfered in the least with the strength of 
his argument. Some of the questions that he discusses and the errors that he 
impugns are no light matter. For example, according to Dr. Smith's theory, 
neither our bishops nor our priests are bound by the decrees of the Baltimore 
Councils. Our bishops may obey or disregard them, as may suit their pleasure 
or convenience ; and priests are always free to appeal to Rome against any bish- 
op who should attempt to enforce the Baltimore decrees. This is going too far, 
and is scarcely respectful to the Holy See, which has commanded that "these de- 
crees be observed inviolably by all whom they concern," viz., by the bishops 
and priests of the American church. Is this a mere empty formula, meaning noth- 
ing; or is it the sincere expression of the will of an authority that we regard as 
supreme? Oris Rome in the habit of giving "commands" which bishops may 
disobey as they please, and which if they enforce they are in danger of being 
called \o account and perhaps rebuked for it? Yet nothing short of this is con- 
tained in Dr. Smith's fanciful theory. Rome has always desired, and earnestly 
desired, that the Baltimore decrees should be observed; and recent indications 
point unmistakably to the fact that she now intends to take positive steps to 
enforce their observance. This will be a practical condemnation from the highest 
source of this novel opinion, which Dr. Smith seeks to introduce into our schools. 
We never heard the opinion expressed before, save by some priest who was 
restive under justly incurred censure. That a drowning man should grasp at 
this pitiful straw is intelligible enough, but that a grave professor and priest in 
good standing should entertain this error and recommend it to the belief of others 
is something rather strange. 

Rev. Dr. Quigley enters into a good deal of learned and interesting discussion 
on several other subjects, such as simple removal from pastoral charge, suspension 
ex inforuiata comcientia, the law of the "Imprimatur," and other matters, amongst 
which is the Tridentine decree "Tametsi," and which on his showing applies to 
seventeen dioceses within the territory of the United States. In other words, 
there are full seventeen of our dioceses in which the legislation of the Fathers of 
Trent against "clandestine" marriages holds good to the same extent that it does 
in Catholic Europe. Dr. Quigley holds that the laws of the Index apply here as 
much as they do in the Old World, and supports his opinion with plausible argu- 
ments. Its spirit unquestionably, if not its letter, is as binding in Baltimore or 
New York as within the precincts of the Holy City. 

The author maintains another position of which we are not quite so sure, 
though we do not care to give it a positive denial. He thinks that the American 
bishops, if they think it expedient, can introduce the parochial system into the 
countrv, i.e., change the pastors of churches from amovibles, as they are, into paro- 
chos perpetuos. We have some doubts about this. It is certain that resident bishops, 
that is, who take their name from the See in which they live, and even Vicars Apos- 
tolic, mav in missionary countries be really and truly ordinaries. But we are not 
sure that they can, therefore, ex potestate ordinaria, introduce the parochial system 
where it never existed before. The example of England, where, on the restora- 
tion of the hierarchy, the co-operation of the Holy See was thought necessary, 
and was consequently invoked and obtained, would tend to prove the contrary. 
What we have stated is based on the "Council of Westminster," and the docu- 
ments contained in it. The change would be so important that on the score of 
proprietv alone the Holv See should be consulted. What the author alleges about 
the erection of parishes in Canada by Episcopal authority, will depend a good 
deal on two questions : First, is Canada a missionary country? And, secondly, 
supposing it to be such, was the erection of these parishes a recent event, or did 
it take place soon after it was colonized by the French? If Canada be a "mis- 
sionarv" countrv, its ecclesiastical relations with Rome will be found to be con- 



ducted through the channel of the Sacred Congregation of Propaganda" Fide. If 
not, they will be through other Congregations. To ascertain these facts would 
solve the difficulty, or rather would reduce the argument to its true value. 

It might be further remarked, for the sake of perfect accuracy, though the errror 
is not one of much importance, that the •■ Instruction " transmitted to the Bishop 
of New Orleans by the Sacred Congregation of Propaganda in the year 1824. is 
not now published for the first time. It was printed four years ago by Rev. Dr. 
Smith, in his Xot<'* on the Second Plenary ('ouneil of Baltimore. New York. 1874. 
(Appendix, p. 452). 

•Trie pamphlet of Dr. Quigley will do good amongst our students of Canon Law; 
for these discussions, when conducted in the proper spirit, can only tend to elicit 
more fully the truth. And we have no doubt that Dr. Smith himself will be glad 
to see others entering the field, in which he justly claims to be a pioneer, even 
though their work consist mainly in correcting the errors he may have committed 
on his first voyage of discovery. 

I thank the Ameb t , .n Catrolic O'aet'tja' R..7:"w, - :hV.lly, for 

kindly pointing out . >e <' + ' ' _■ m my stateuie' ' of the fa,*- in the case of the 
erection of Canonical Parishes i„ Canada ( Points ix Canon Law, p. 30). 
To supply those defects I now ask to state, on the authority of the present 
gracious Archbishop of Quebec. Mgr. Ta-ehereau, that: 

1. Benefices perpetual are most rare in < 'anadf. In the whole Province of 
Quebec there is but one such benefice, viz., that erected in the parish of Our 
Lady Immaculate, in the Cathedral. September loth, A. I). 16H4, by Mgr, 
Francis de Laval, then Vicar Apostolic- of all Canada, and. later, the first 
Bishop of Quebec. 

The records show that Mgr. de Laval assented to tjie petition for the above 
erection, and spoke thus: 

" Itaque sacrorum canonum, conciliorumque deeretis inherentes. ilia qua 
fungimur auctoritate, ecclesiam Immaeulatae Conceprionis B. V. M. I rbis 
Q : uebecensis, in perpetuum parochiae titulu.ni et beneficium eregimus." 

2. Xo other Parishes in Canada are perpetual benefices. The Pastors are 
amovibile* ad {iidum epixcopi, and are constituted solely by the ordinary power 
of Bishops. (The Pastors in Montreal are amovibilex nou to! urn ad nutmn. 
epitcopi, srd etiam Seminarii, ad hi*tar parochiaruni reepdaritim, ju.vta qucnnddm 
bid lam Benedieti XIV). 

3. The Bishops of Canada have believed that the power of erecting Can- 
onical Parishes is comprised within their ordinary power, and have always 
exercised it without ever making any mention of any Apostolic Indult. 

4. Canada has always been subject to the Propaganda, and is now subject 
to the same Sacred Congregation. All her ecclesiastical affairs with the Holy 
See are conducted through the Propaganda. 

From this it follows tiiat the Canadian Bishops erecting Canonical Parishes 
solely bv their ordinary power, afford a precedent for the United States Bishops 
to erect Canonical Parishes vi pote*t<di* ordinariae. 

Regarding my claim that my publication of the Roman Instruction to New. 
Orleans wa< the first appearance of that document in any book or pamphlet 
published in the United States, I ask to state in qualification of my claim, that 
my publishing it w;h its first legitimate appearance in any book or pamphlet 
published in the United States. 

Accepting the doctrine advanced in Points in Canon Law, pp. 33-36, on 
the law of the imprimatur necessitates the repudiation of Rev. Dr. Smith's; 
JYofr.s on, the Second Plenary Council of Baltimore, as an illegitimate and forbid- 
den publication, for it was published without the imprimatur. 

Also, I ask to >tate that Vicar General Raymond, of New Orleans,- at my 
most urgent request, had the document in question published in circular form, 

April 28th, 1878. 
1 P. F. Q.